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REPORTS
OF
CASES AT LA W AND IN CHANCERY
a.aoerwt *jxl obk'bkmijsis:. t» t®i
SUPREME COURT OF ILLINOIS.
NORMAN L FREEMAN
OOCNSBLOB AT LAW
VOLUME XXXI,
*>ant *I*TKG A PABT D? THE GaSSS DBQIIJBD AX «HH JaJSHOaRV a.JKS> &.*>>SIJEI TfflWW*. S3S&.
CHICAGO:
CALLAGHAN & CO,
1876.
{filtered according to Act of Congress, in the year X87&, b?
NORMAN L. FREEMAN an© WILLIAM L. GR08&
m toe office of the Librarian of Congress, at Washington
— , — _ ___ _ , ,
PARSONS AND COMPAQ?,
PBIVTBR8 AND gTBBBOTTP«8S
!"¥ Si. *
JUSTICES OF THE SUPREME COURT
DURING THE TIME OF THESE REPGRT8
Hon. JOHN D. CATON, Chief Justice.
Hon. PINKNEY H. WALKER, )
> Justices.
Hon. SIDNEY BREESE, \
Note.— The Hoc. Xbenezer Peck, having been appointed by She President of
the United States to the office of Judge of the Court of Claims, at Washington
City, resigned his office as Reporter of the Supreme Court of Illinois, at the April
Term thereof, 1863. At the same term. Norman L. Freeman was appointed Repor-
ter of the Supreme Court.
TABLE OF OASES
REPORTED IN THIS VOLUME
A PAGE
Adams ads. Briggs 486
Amboy , City of, v. Sleeper ...... 499
Andress et al. ads. Bigelow et al. 322
Archer et al. v. ClaEin et al. 806, 317
Babcock et al. v. Smith et al. . . . 57
Baker v. Williams 499
Banks v. Banks 162
Same ads. Same 162
Bay et al. v. Cook 336
Bigelow et al. v. Andress et al. . . 322
Billings v. Lafferty 318
Blackstone ads. Foy 538
Bogue ads. Wales et al. . . . . . . . 464
Bollig, ex parte 88
Boyd v. Kocher 295
Boyd v. Cudderback et al 113
Boyden ads. Thornton 200
Brenner et al. ads. Holbrook 501
Briggs v. Adams 486
Brown v. Gorton et al 416
Buck ads. Eggleston et al 254
Bull, Adm'r, etc., v. Harris 487
Bulson et al. v. The People 409
Burchell, State's Attorney, etc.,
et al. ads. Supervisors of
Whiteside Co 68
O
Catlin ads. Perley 533
City of Aniboy v. Sleeper 499
City of Pekin v. Reynolds 529
Claflin et al. ads. Archer et al. 806, 317
Clark v. The People 479
Same v. Same 483
Commissioners of Swan Town-
ship v. The People ex rel. Wal-
den 97
Conklin v. Vail 166
Same v. Same 166
Connor v. Nichols 148
Cook ads. Matthias et al 83
Cook ads. Orne 238
Cook ads. Wood et al 271
Cook ads. Bay et al 336
County of Rock Island v. Steele. 543
Same v. State Bank 543
Cudderback et al. ads. Boyd. ... 113
Cummings et al. ads. Olds 188
Cushman et al. ads. Warner. . . „ 283
D
Darst ads. Fortier 212
David ads. Merryman 404
Davidson v. Waldron et al 120
Davidson v. Johnson 523
Day et al. ads. Walbridge 379
Drew v. Drury 250
Drury ads. Drew 250
Durham et al., Adm'rs, etc., ads.
Vanmeter et al 237
Edwards et al. v. Edwards et al. 474
i?
TABLE OF CASES,
PAGE
Edwards ec al. ads. Edwards et al. 474
Bggleston et al. v. Buck 254
Evans ads. Kennedy et al., Ex'rs,
etc 258
Fender et al. v. Stiles. 460
Ferraria et al. v. Vasconcellos et
al 25
Flagg ads. McLean County Bank
et al 290
Fortier t>. Darst 212
Foy v. Blackstone 538
Fuller et al. v. Langford et al. . . 248
Fuller et al. v. McPherran et al. 248
Fuller et al. v. Irvin 248
Galena and Chicago Union R. R.
Co. v. Griffin 303
Gillilan v. Myers 525
Golden v. Knox 498
Goodrich fl.Reynolds,Wilder & Co. 490
Gorton et al. ads. Brown 416
Griffin ads. Galena and Chicago
R. R. Co. 303
H
Hadduck ads. Speer 439
Hall ads. Leighton 108
Harris ads. Ball, Adm'r. etc 487
Harvie et al. ads. Smyth et al. . . 62
Herring v. Quimby et al 153
Hey worth ads. Tinkham & Co.. . 519
Hinckley et al. ads. Shortall 219
Hinds et al. v. Ingham 400
Hoisington et al. ads. Moore. . . . 243
Holbrook v. Brenner et al 501
Hopps v. The People 385
Hoskins v. Litchfield et ux 137
I
Illinois Central R. R. Co. ads.
Neustadt et al 484
Ingham ads. Hinds et al 400
Irvin ads. Fuller et ah. 248
/ames ads. Rowley
i ohnson ads. Davidson.
523
PAGl
Johnston v. The People 46&
K
Kane County, Supervisors of, 9.
Young et al 194
Kennedy et al., Ex'rs, etc., v.
Evans 258
Keohane ads. Michigan Central
R. R. Co., Garnishees, etc. . . . I'M
King et al. v. McDrew et al 418
Knox ads. Golden 498
Kocher ads. Boyd 295
L
Lafferty ads. Billings 818
Leighton v. Hall 108
Langford et al. ads. Fuller et al. 248
Lill et al. v. Neafie 101
Lindley ads. Pardee 174
Linton v. Porter 107
Litchfield et ux. ads. Hoskins. . . 137
Louis et al. ads. Welch 446
m:
Matthias et al. v. Cook 83
McDowell et al. ads. Ward well. 364
McDrew et al. ads. King et al. . 418
McHard ads. Vanmeter 257
McLean County Bank et al. v.
Flagg 290
McPherran et al. ads. Fuller et al. 248
Merryman v. David 404
Michigan Central R. R. Co., Gar-
nishees, etc., v. Keohane 144
Miller et al. v. Montgomery 350
Miller et ux. ads. Smith 157
Millett et al. v. Pease et al 377
Montgomery ads. Miller et al . . . 350
Moore v. Hoisington et al 243
Mullen v. The People 444
Myers ads. Gillilan 525
Myers et al. v. Walker 853
Neafie ads. Lill et al 101
Neustadt et al. v. Illinois Central
R.R. Co 484
Nichols ads. Connor. 148
TABLE OF CASES.
O PAGE
O'Connor c. Union Line Trans-
portation Company 230
Olds v. Cummings et al 188
Ornefl. Cook 238
I*
People ads. Richardson 170
Same ads. Hopps 385
Same ads. Bulson et al 409
Same ads. Mullen 444
Same ads. Johnston 469
Same ads. Clark 479
Same ads. Same 483
People ex rel. Walden ads. Com-
missioners of Swan Township. 97
Pardee v. Lindley 174
Pease et al. ads. Millett et al 377
Pekin, City of, v. Reynolds 529
Perley v. Catlin 533
Porter ads. Linton 107
Q
Quimby et al. ads. Herring 153
R
Reynolds ads. City of Pekin. . . . 529
Reynolds, Wilder & Co. ads.
Goodrich 490
Richardson v. The People 170
Rock Island, County of, v. Steele. 543
Same v. State Bank 543
Rowley v. Janies 298
S
Schseffer ads. Troutman et al . . . 82
Schofieldfl. Settley et al 515
Settley et al. ads. Schofield 515
Sljortall v. Hinckley et al 219
Sleeper ads. City of Amboy 499
Smith v. Miller et ux 157
Smith et al. ads. Babcock et al. . 57
Smyth et al. v. Harvie et al 62
Speer v. Hudduck 439
State Bank ads. County of Rock
Island 543
Steele ads. County of Rock Island 543
Stiles ads. Fender et al 460
Supervisors of Kane County «.
Young et al . . . 194
Supervisors of Whiteside County
v. Burchell, States' Attorney,
etc., etal 68
T
Thornton v. Boyden 200
Tinkham & Co. v. Hey worth 519
Troutman et al. v. SchaBffer 82
XT
Union Line Transportation Com-
pany ads. O'Connor 230
Vail ads. Conkling 166
Same ads. Same 166
Vaseoucellos et al. ads. Ferraria
etal 25
Vanmeter v. McHard 257
Vanmeter et al. v. Durham et al.,
Adm'rs, etc 237
W
Walbridge v. Day et al 379
Waldron et al. ads. Davidson . . . 120
Wales et al. v. Bogue 464
Walker ads. Myers et al 353
Walker ads. White 422
Ward well v. McDowell et al 864
Warner v. Cushman et al 283
Welch v. Louis et al 446
White v. Walker 422
Whiteside County, Supervisors
of, v. Burchell, States' Attorney
etc., etal 68
Williams ads. Baker 499
Wood et al. v. Cook 271
Young et al. ads. Supervisor* of
Kane County 1W
RESIGNATION OF HE. CHIEF JUSTICE CATOS.
At the meeting of the Supreme Court of this State at Spring-
field, on the 9th day of January, 1S64, there were present upon
the Bench, Mr. Chief Justice Catox, and Justices Walked and
Breese.
His Excellency, Governor Yates, and other State officers, a
large number of the members of the Bar, and other citizens, were
in attendance.
The Chief Justice addressed the Bar as follows :
Gentlemen of the Bar :
The time has now arrived which I have assigned to myself for
terminating the official relation which has so long existed between
us. It is now nearly twenty-two years since I was first called
to this Bench, and I take a degree of satisfaction in stating that
during this whole time I have been absent but upon one occa-
sion, and that was at the last November term, when a severe
illness from which I have scarcely yet recovered, detained me
from my duties. I may also add that no term of this court has
ever been closed till every cause ready for disposition was finally
heard. We have felt that next in importance to a correct deter-
mination of causes, is a prompt administration of justice, but
for a number of years past it has required extraordinary labor to
keep the business up, and at times we have felt it almost impos-
sible to do so.
I have ever felt, and at times oppressively, the great responsi-
bilities which must ever rest upon each member of a court of
last resort, and I have ever endeavored to discharge them prop-
erly. That I have fallen into many errors in the course of my
judicial life cannot be denied, but I have anxiously labored to
make them as few as possible, and when discovered I have
promptly endeavored to correct them.
It is in the infancy of a State that the labors of the Courts and
of the Bar are the most difficult and the most responsible. When
I first became a member of this court we had but three volumes
of Reports ; now we have thirty. Then we had but few prece-
dents by our own courts, and the responsibility devolved upon
us to establish precedents for our successors. In this we have
had the assistance and advice of a Bar gathered from nearly
every State in the Union, each of whom naturally felt a partiality
for the rules prevailing whence he came. Hence few decisions
were overlooked bearing upon any question presented. From
these we have adopted those rules which we believed best and
VllI RESIGNATION OF
soundest. During this period the wonderful advance in the arts
and sciences has introduced such improvements as have, in many
respects, changed the modes of doing business and the relations
among men, so that many new and difficult subjects for adjudica-
tion have been presented to the courts which we have settled to
the best of our ability, but it would be presumption to assume
that we have in all cases settled them in the best possible mode.
During my time, with the old court and the new, I have sat
upon this Bench with eighteen different associates, and I am
most happy to bear my testimony to the most cordial good feeling
which has ever prevailed in the conference room. There have I
contracted new friendships and cemented old, which will glow
brightly in my memory while life shall last. All have evinced
the deepest anxiety to arrive at correct conclusions ; and could
the secrets of the conference room be fully laid open, you would
know that many of your important causes have been even more
laboriously discussed there than they had been at the Bar.
Courts of justice widely differ from the other departments of
the government. In general their action affects members of
society individually and directly. They decide upon the rights
of all, and all have an equal claim upon their industry and their
impartiality. They are not political in their structure, and they
must know no party. They are for the good of all, and they
must know no friendships. Whenever the courts come under
the influence of any party, either from fear or favor; whenever
they lend themselves to favor classes or individuals, then will
they forfeit the confidence of the public and sink into the lowest
depths of degradation and contempt. A firm and upright judi-
ciary may calmly contemplate the breaking surges of party strife
which may be raging around them, and pass by complaints and
even denunciations without emotion. Conscious of their own
integrity, they may safely and serenely repose upon the assurance
that they will be appreciated and sustained by a right-thinking
public. At last, the approbation of good men is the good man's
highest reward.
In taking my final leave of you, gentlemen, I cannot and ought
not to omit the expression of the deep gratitude I feel for the
kindness, the respect and the forbearance you have ever shown
me. If I have succeeded in any measure as a jurist, to a very
large extent is the credit due to the members of the Bar, for the
learned and able advice which you in your places have given
me. Whenever I have fallen into error or committed faults, you
have seemed anxious rather to cover them up than to make them
prominent, and delicately to assist me in avoiding them in future.
When I came to the Bench we had a numerous and an able
Bar, but very few of whom I now see before me. Where are
they now? Many have been called to other spheres of action,
and to other responsibilities. The present chief magistrate of
the nation was for nearly twenty years of this time a prominent
and a leading member of this Bar, whose voice was at every term
almost daily heard in this hall, and always profitably. Others,
ME. CHIEF JUSTICE CAT ON". IX
alas ! and many of them, have gone to that higher judgment
seat, where no errors are committed, and to which we are all
hastening. But their places have been all filled, and more, by a-
new generation who now constitute a large majority of this Bar,
and who I am proud to say are well worthy of their predecessors.
Eemember, gentlemen, that you belong to a very high and
honorable profession. Be worthy of your high vocation, which
is to stand forth a shield to the innocent, protectors of the op-
pressed, and champions for the right. You are the advisers ot
this court, and upon you I am sure it may ever lean for assist-
ance and support. Industry and the highest integrity are
indispensable to success. Continue as you have begun and you
will prove worthy examples to those who shall come after you.
I cannot express my sensibilities at parting with my present
associates. Long and anxious labors and weighty responsibilities
have we for years shared together, each earnestly endeavoring
to assist all in the discharge of our duties. So has grown up
among us a warm personal friendship which has greatly lightened
our labors.
For my successor, the Governor has selected a gentleman of
eminent qualifications for the place, and I am sure this Bench
will be strengthened rather than weakened by the change.
At last, gentlemen, I go clown from this high place with many
regrets. Here have I labored for more than two-fifths of my whole
life. I now hold my fifth commission on this Bench. Twice
have I held the position of Chief Justice, the last time for more
than six years. Long habit and present associations, and remem-
brances have struggled hard to dissuade me from the course
which I have finally adopted, but I felt it my duty finally to yield,
and other considerations have prevailed. I fully appreciate that
this is a place worthy of any well-regulated ambition. A whole-
some desire for an enduring fame may here find a theater in
which it may toil to a useful purpose, and with a well-grounded
hope of attaining so desirable an end.
I resign the great trusts which have been reposed in me with
the comfortable reflection that I have discharged them with
fidelity, and with the utmost ability with which I have been
endowed.
Upon the conclusion of the address of the Chief Justice, the
Hon. Wm. H. Underwood, on behalf of the Bar, responded as
follows :
If the Court please:
At a meeting of the members of the Bar of this court, held at
this place, on yesterday, at two o'clock p. m., to take action with
reference to the contemplated resignation of Chief Justice
Caton, certain resolutions were adopted, which, at the proper
time, I am instructed to present to this court, and move that
they be entered on the records.
In behalf of the members of the Bar in attendance on this
2 — 3 1st III.
RESIGNATION OF
court, permit me to say : It was with unfeigned regret we learned
the intention of your Honor to retire to the walks of private life.
We duly estimate your arduous labors in this court for more
than twenty-one years. The duties of a judge of the highest court
of appeals in this State are of great delicacy and difficulty.
While you have acted as one of the judges of this court, our
progress in population, wealth and enterprise has been extra-
ordinary.
Ours is not only an agricultural State, but mining, manufac-
tures, commerce and internal improvements have developed our
unbounded resources, and occasioned new and intricate ques-
tions of law to be presented to our courts for solution and deter-
mination. The decisions of this court are not only adjustments
of the points in controversy between litigating parties, but are
precedents for all other cases where the same points arise in or
out of the courts in this State.
Life, liberty, property, reputation, and all our social and civil
rights, are under the care and protection of our judicial tribunals,
and to them we look for a redress of all wrongs and injustice we
may suffer in person or estate. The duties of a judge of this
court demand intellectual capacity of a very high order, and a
combination of qualifications not often possessed : Patient and
untiring industry, that will explore our State and national con-
stitutions and statute laws, the conflicting decisions in our sister
State courts, the decisions of the courts of the United States and
of Great Britain, the numerous text books, and often ill-digested
and voluminous statements of evidence ; an accurate and reten-
tive memory ; clear perception to analyze and group facts ; and
sound judgment, from a multitude of facts to discover and grasp
the vital points upon which a cause should turn and the prin-
ciples of law necessarily involved ; courtesy and kindness, with
the integrity and nerve to expound and determine the facts and
law as they are, without regard to persons or partisan influences
or dogmas,
Suaviter in modo et fortiter in re.
It is due for us to say that you have exhibited these powers
and qualities in an eminent degree, and those of the Bar who
know you best, will most deplore your retirement from the
Bench. Your judicial opinions will be read with pleasure,
interest and profit, so long as our State shall exist, and will be
consulted with advantage in other States. The acts of warriors
and statesmen absorb our earnest attention for a few moments
and pass from our memory to be embalmed on the pages of
history for thoughtful students ; while the decisions of our courts
are permanent memorials of the rights of men, that stand as
granite landmarks or beacon lights to the profession and the
people in after years. To have aided in deciding and administer-
ing the law justly, and enforcing the rights of men, is an honor
that is duly regarded by the public, and will afford a living
source of satisfaction to an upright judge while he lives. And
it gives us pleasure to reflect that you will carry with you in
MK. CHIEF JUSTICE OATON. XI
retirement, the assurance that you have faithfully, impartially,
and with the cordial approbation of the profession, discharged
your official duties.
In conclusion, permit me to express to you the gratitude of
the profession for your past judicial services, and the hope that
you may continue to enjoy unalloyed health, happiness, prosperity
and honor, in a country whose people seldom fail to appreciate
and reward talents and merit.
Mr. Underwood having concluded his remarks, the Chief
Justice rose, and addressing Mr. Justice Walker, said : " Mr.
Chief Justice Walker, I resign my seat to you as my successor ; "
and taking leave of his associates and the officers of the court,
retired from the court room.
Mr. Justice Walker then assumed his seat as Chief Justice
of the Supreme Court; Mr. Justice Breese taking his seat on
the right of the Chief Justice.
After Mr. Justice Caton had retired from the court, Mr.
Underwood presented the following proceedings of the Bar,
had at a meeting held on the preceding day, with the request
that they be spread upon the records of the court :
"At a meeting of the Bar of the State of Illinois, held in the
Supreme Court Room of the Second Grand Division, in Spring-
field, on the 8th day of January, A. I). 1864, on motion of Benja-
min S. Edwards, Esq., the Hon. William H. Underwood was
requested to preside over the meeting. Judge Underwood,
upon taking the chair, explained the object of the meeting to be,
the expression, by the Bar of the State, of their appreciation of
the public services, and regard for the private and public character
of the Hon. John D. Caton, Chief Justice of the Supreme Court
of this State, and their regret upon his resignation of that
position.
" On motion of the Hon. 0. C. Skinner, a committee was
appointed to draft resolutions expressive of the sentiments of the
Bar, on the occasion of the resignation of the Chief Justice.
"The committee was composed of the following gentlemen:
Hon. 0. C. Skinner, Hon. Joseph Gillespie, Hon. Isham N.
Haynie, S. 0. Judd, Esq., and Hon. Benjamin S. Edwards;
who subsequently reported the following preamble and resolutions,
which were adopted unanimously :
" ' The retirement of Chief Justice John D. Caton from the Supreme Court
of this State, presents a fitting occasion for the expression of the sentiment of
the Bar, touching his personal and official conduct for a period of more than
twenty years ; therefore,
" ' Resolved, That while recognizing by his ability and eminent qualifications
as a judge, he has adorned the bench of the Supreme Court ; by his urbane
and courteous demeanor, has won the highest esteem of the members of the
Bar ; and by his uprightness, impartiality and erudition, the confidence of the
people of the State, we regret the retirement of the Chief Justice, we unani
Xil RESIGNATION OF ME. CHIEF JUSTICE OATON.
mously tender to him the assurance of our continued confidence in his pri-
vate worth and official integrity and ability, and that we, in common with
the people of Illinois, shall trust, that in whatever capacity he may be called to
act, his public usefulness may remain unabated, and will rejoice in his hap-
piness and prosperity to the end of his life.
" ' Resolved, That the chairman present the proceedings of this meeting to
the Supreme Court, and request that they be entered on the records thereof.' "
The resolutions having been read, Mr. Chief Justice Walker
responded :
Gentlemen :
Your resolutions truly express the feelings and sentiments of
the court. And it is with regret that we terminate our official
connection with Chief Justice Catok. We have been associated
with him for six years on the Bench, and during that time have
ever found him the prompt, laborious and energetic judge.
Whilst thus associated with him, sharing the labors and respon-
sibilities of the place, he has been the urbane officer, the consid-
erate friend, the pleasant companion. His long experience, and
his thorough legal attainments, made him an invaluable associate
on the Bench. Well read in the principles of the science of the
law, familiar with the previous adjudications of the court, he was
.always ready in their application to cases on trial.
My acquaintance with him commenced with my connection
with the Supreme Bench ; and my association with him in the
discharge of its varied, complicated and responsible duties, was
always exceedingly pleasant and harmonious, and has ripened
into deep friendship, which has strengthened with the continuance
of the relation. In his retiring from the Bench, the court has
lost a valuable assistant, and the community an able judge.
His long experience rendered him familiar with the practice of
the court, and enabled him to preside with ease to himself, and
to the dispatch of business. Knowing my want of knowledge
of the practice, and inexperience as a presiding officer, it is
with distrust in myself that I shall attempt to fill his place, not
hoping to give the same satisfaction he has rendered as the
presiding officer of the court.
The remarks of Chief Justice Catok will be spread upon the
records of this court. Your resolutions will also be spread upon
the records of the court, as a testimonial of your respect for
Chief Justice Catok.
EULES OF PEAOTIOE
or THE
SUPREME COURT OF THE STATE OF ILLINOIS,
Rules adopted at November Term, 1858, at Mount Vernon.
WRITS OF ERROR AtfD SUPERSEDEAS.
1. No supersedeas will be granted, unless a transcript of the
record on which the application is made be complete, and so
certified by the clerk of the court below, and the requisite bond
be entered into and filed in the office of the clerk of this court,
according to law, with an assignment of errors written on, or
appended to the record. [See Eule 51, post, as to affidavit
required of sufficiency of bail ; and see Rules 54 and 55, post.]
2. Whenever a bond is executed by an attorney in fact, the
clerk shall require the original power of attorney to be filed in
his office, unless it shall appear that the power of attorney con-
tains other powers than the mere power to execute the bond in
question ; in which case the original power of attorney shall be
presented to the clerk, and a true copy thereof filed, certified by
the clerk to be a true copy of the original.
3. When a writ of error shall be made a supersedeas, the
clerk shall indorse upon said writ the following words: " This
writ of error is made a supersedeas, and is to be obeyed accord-
ingly ; " and he shall thereupon file the writ of error, with the
transcript of the record, in his office. Said transcript shall be
taken and considered as a due return to said writ ; and there-
upon it shall be the duty of the clerk to issue a certificate in
substance as follows, to wit :
STATE OF ILLINOIS, ss.
Office of the Clekk of the Supreme Court.
1 do hereby Certify, That a writ of error has issued from this court for the
reversal of a judgment obtained by vs. - — , in the court of ,
at the term, A. D. 18 — , in a certain action of ; which writ of
error is made a supersedeas, and is to operate as a suspension of the execution
of the judgment ; and as such, is to be obeyed by all concerned.
Given under my hand and the seal of the Supreme Court, at , this
lay of , A. D.18— .
, Clerk,
XIV EULES OF PRACTICE.
4. Writs of error shall be directed to the clerk or keeper
of the record of the court in which the judgment or decree
complained of is entered, commanding him to certify a correct
transcript of the record of this court ; but when the plaintiff in
error shall file in the office of the clerk of this court a transcript
of the record duly certified to be full and complete, before a
writ of error issues, it shall not be necessary to send such writ
to the clerk of the inferior court, but such transcript shall be
taken and considered as a due return to said writ.
5. The process on writs of error shall be a scire facias to hear
errors, issued on the application of the plaintiff in error to the
clerk, directed to the sheriff or other officer of the proper county,
commanding him to summon the defendant in error to appear in
court, and show cause, if any he have, why the judgment or
decree mentioned in the writ of error, shall not be reversed. If
the scire facias be not returned executed, an alias and pluries
may issue without an order of court.
6. The first day of each term shall be return day, for the
return of process. And no party shall be compelled to answer
or join in error, unless the scire facias shall have been served
ten days before the return day thereof ; nor shall a defendant be
at liberty to enter his appearance and compel the plaintiff to pro-
ceed with the cause, unless the defendant shall have given the
plaintiff ten days' notice, before the term, of his intention to
enter his appearance and have the cause proceed to a hearing.
[See Eule 56.]
7. When a writ of error not operating as a supersedeas, shall
issue, the plaintiff in error shall, before the third day of the return
term thereof, assign the particular errors of which he complains ;
but other errors may be subsequently assigned, by leave of the
court. If errors are not assigned as aforesaid, the cause may be
dismissed. Errors, when assigned, and the joinder therein, shall
be written on or attached to the record.
ORIGINAL ACTIONS.
8. In proceedings in original actions relating to the revenue,
the process or notice of a motion shall be served on the defend-
ant, at least twenty days before the first day of the term. If
there shall not be twenty days between the day of service and
the first day of the term, the cause may be continued on the
application of the defendant.
9. In such original actions, if a declaration setting forth the
cause of action shall not be filed, at least twenty days before the
first day of the term, the cause may be continued on the appli-
cation of the defendant.
ABSTRACTS AND BRIEFS.
10. In all cases, the party bringing a cause into this court
shall be required to file with such record, or where the record is
RULES OF PRACTICE.
filed for a supersedeas, within twenty days thereafter, a full and
complete abstract or abridgment of said record, referring to the
appropriate pages of the record abstracted, by numerals on the
margin, with the clerk of said court, and no cause shall be
heard until three days after such abstract or abridgment shall
have been filed as aforesaid.
It shall be the duty of the clerk to cause every such abstract
or abridgment to be printed, on one side only, of white foolscap
paper, having a margin at least two inches in width, on the left
hand side of each sheet, one copy of which shall be furnished
each of the judges, one to the reporter, and one to the opposite
party, for which the clerk shall be allowed fees as in other cases.
Said abstract shall be printed in a neat and workmanlike
manner, with small pica type and leaded lines.
11. In case the appellant or plaintiff in error shall neglect to
file an abstract in compliance with the rules of this court, the
opposite party may file the abstract and prepare the cause for a
hearing ex parte, and have the costs taxed therefor, provided
the appellant or plaintiff in error would have been entitled to
have the cause heard at the same term.
12. That seven printed copies of abstracts be furnished by
the clerk, under the rules of this court — one for each of the
judges, one for the reporter, one for each of the parties, and one
to be filed with the record. And the party filing the abstract
shall, at the same time, deposit with the clerk twenty cents for
each hundred words contained in the abstract, or in lieu thereof
he may furnish the clerk with the printed copies of the abstract
as required, and no cause shall be heard until such printed
abstracts shall have been furnished. [See Rules 47, 48 and 49,
as to fees for abstracts, etc.]
13. It shall be the duty of the counsel for appellant or plaintiff
in error to furnish each of the justices with a printed brief of
the points and authorities to be used in the argument of the
cause at the commencement of such argument, and a copy there-
of shall be filed with the clerk for the use of the opposite counsel
at least one day previous to the argument. The defendant's
counsel shall also furnish each of the justices and the opposite
counsel, at the commencement of the argument, a printed brief
of the authorities he intends to cite.
14. The defendant's counsel shall be permitted, if he is not
satisfied with the abstract or abridgment by the plaintiff's coun-
sel, to furnish each of the justices of this court with such further
abstracts as he shall deem necessary to a full understanding of
the merits of the cause.
15. If the rules in relation to the furnishing and filing of
abstracts and briefs are not complied with, the cause shall either
be continued or dismissed at the discretion of the court. [See
Rules 47, 48 and 49.]
XVl RULES OF PEACTIC
DOCKETING AND HEARING.
16. Causes in which the people are a party, and in which
they have a direct interest in the decision, shall be placed at the
head of the docket ; all other causes shall be docketed and called
for argument in the order in which the records shall have been
filed with the clerk.
17. When a rule shall have been taken to join in error, the
appellant or plaintiff in error, when such rule shall not have been
complied with, may take a judgment by default, or may set
down the cause for hearing ex parte, and the court shall give such
judgment as the case may warrant.
18. All causes in which no counsel shall be entered on the
docket, and where no appearance is entered, will be dismissed
when called for hearing, unless cause is shown for a continuance.
19. The civil docket shall be called numerically, and the
causes shall be argued, continued, or otherwise disposed of, as
they are called, unless, for good cause shown, they be placed at
the foot of the docket; all unexpired rules will terminate upon
the call of the cause for hearing : Provided, That if the court
shall give time to either party without the consent of the other,
the cause shall not lose its precedence on the docket.
20. All causes will be disposed of for the term upon the
second calling of the docket.
MOTIONS.
21. Motions may be made immediately after the decisions of
the court are announced, but at no other time, unless in case of
necessity, or in relation to a cause when called in course.
22. Motions are to be made by the attorneys in the following
order : First, by the attorney for the people, next, by the oldest
practitioner at the bar, and so on to the youngest.
23. All special motions shall be in writing and filed with the
clerk, together with the reasons in support thereof, at least one
day before they shall be submitted to the court. Objections to
motions must also be in writing; oral arguments will not be
heard.
24. When a motion is intended to be based on matters which
do not appear by the record, the facts must be disclosed and
supported by affidavit.
RE-HEARING OF CAUSES.
25. Application for a re-hearing of any cause shall be made
by petition to the court, signed by counsel, briefly stating the
grounds for a re-hearing, and the authorities relied on in support
thereof; notice of such intended application having been first
given to the opposite party or his counsel. When a re-hearing
RULES OF PRACTICE XV11
is granted, notice shall be given to the opposite party of the
time when such re-hearing will be had. [This rule is amended
as follows :]
- Amendment to Rule 25.
Provided, however, That no motion for a re-hearing shall be
entertained, unless the same is entered within the first ten days
of the term of the court next ensuing the filing the opinion in
the cause of which a re-hearing is prayed. [See Rule 60, post.]
26. Any two of the justices of this court may in vacation,
issue an order which shall operate as a supersedeas in any case
which has been submitted to this court for hearing and judgment,
whenever a re-argument of the same shall in their opinion be
advisable.
27. Where an opinion in any case is filed in vacation, and a
petition for a re-hearing shall be presented to either of the justices
of this court, if he shall certify that there is probable grounds
for granting a re-hearing, all further proceedings authorized by
the judgment of this court shall be stayed until the next term of
the court in the division in which the judgment shall have been
rendered.
EXECUTIONS.
28. Upon the affirmance of judgments, executions may issue
at the option of the party, from this court, or if such party so
elect, a writ of procedendo shall be issued to the court below,
upon the payment by the successful party of the costs made by
him in this court.
29. The clerk is authorized to demand payment in advance
before he shall be required to perform any official service : Pro-
vided, That if any party shall deposit five dollars with the clerk,
or shall give security, signed by some person, to be approved by
the clerk, for the payment of all costs such party may make or
be adjudged to pay, then so much of this rule as requires pay-
ment in advance shall not apply to such party.
(notice to kon-kesidekts.)
30. In all cases where a writ of error and scire facias shall
be sued out, the plaintiff therein, or other person for him, may
file with the clerk of the court for the division in which said
writs issued, an affidavit, setting forth that the defendant or
defendants has or have gone out of this State, so that process
cannot be served on him, her, or them, or that he or they are
non-residents of this State, or on due inquiry cannot be found,
or is or are concealed in this State so that process cannot be
served on him or them, or evades service of said process ; and
thereupon it shall be the duty of said clerk of the proper division
to cause publication of notice to be made to said defendant or
defendants, in some newspaper published in the county where
3— 31st III.
XT111 RULES OF PEACTICE.
said court 'for said division shall be held, setting forth the pen-
dency of said writ of error, the names of the parties, the title, term
and time of said court to which the scire facias may be return-
able ; which notice shall be published for four consecutive weeks,
the first insertion to be not less than sixty days before the return
day of said writ. And in case there shall be no newspaper pub-
lished in the county where by law said court is to be hold en,
then said notice may be published in any paper in said division ;
and upon the same being done, and a certificate of publication,
signed by the publisher, together with proper affidavit (that a
copy of said notice has been mailed to said defendant at his
usual post-office, naming it, and the time when mailed, if known,
so distinctly marked that attention will be called thereto); being
filed with the clerk of said court ; and if such notice shall not
have been sent to the party or parties, and each of them, an
affidavit shall be filed showing that upon diligent inquiry the
residence or post-office of the party or parties to whom such
notice has not been sent, could not be ascertained ; said cause
shall proceed as if the said defendants or defendant had been
personally served.
LIBRARY.
31. No book shall be taken from the library of the Supreme
Court without the consent of the court; and if any one shall take
away a book without such consent, such person shall be con-
sidered in contempt of the court, and may be fined at the discre-
tion of the court.
32. The books of the law library shall not be marked ot
underlined with pen or pencil, nor shall the pages of the same
be folded down.
The librarian shall adopt such rules as to the safe-keeping of
the books as he may deem expedient.
RECORDS.
33. No person shall remove from the office of the clerk any
record of this court, except upon special leave granted for that
purpose. No record shall be taken from the files of the court,
except on application therefor to the clerk or his deputy; and it
is made the duty of the clerk to report promptly to the court
every violation of this rule. The clerk shall be held responsible
for the safe-keeping and production of the records.
Application for leave to remove records may be considered at
any time, in the discretion of the court.
RECORDS OF INFERIOR COURTS.
34. Hereafter the clerks of the several inferior courts in this
State, in cases of appeal and of error or certiorari, in making up
" an authenticated copy of the record of the judgment appealed
from," or in sending up a transcript of the record to this court
as a return to a writ of error or certiorari, shall certify to this
RULES 01 PRACTICE. XIX
court, 1st, a copy of the process ; 2nd, the pleading of the
parties respectively ; 3d, the verdict in jury trials ; 4th, the
judgment of the court below, whether tried by the court on jury ;
5th, all orders in the same cause made by the court ; 6th, the bill
of exceptions; and 7th, the appeal bond in cases of appeal.
And in no case shall the said clerk insert in such transcript
any affidavit, account, or other document or writing, or other
matter, which, according to the decisions of this court, have
been held to constitute no part of the record of a cause.
This rule shall not extend to appeals or writs of error in
chancery or criminal causes.
35. The clerk of the court below shall arrange the several
parts of the record aforesaid according to their chronological
order. The clerk of this court shall not tax as costs in this court
any matter inserted in such transcript contrary to the rule.
36. The party or his attorney may, by prcecipe, indicate to the
clerk, and direct what of the files of the cause shall be copied
into the record ; and in such case, if the record shall be insuffi-
cient, it shall be supplied at his costs, and, if unnecessarily
voluminous, he shall pay the costs accrued, on account of the
copying of such unnecessary matters.
MANDAMUS.
37. Before an application for a writ of mandamus will be
heard by this court, the applicant must show that all the parties
interested in the subject-matter to be reached or affected by the
issuance of the writ, have been notified in writing of the time
and place of the intended application, at least ten days previous
thereto, unless the court for special reasons shall otherwise
direct.
AGREED CASES.
38. No judgment will be pronounced in any agreed case
placed upon the records of this court, unless an affidavit shall be
filed, setting forth that the matters presented by the record were
litigated in good faith about a matter in actual controversy
between the parties, and that the opinion of this court is not
sought with any other design than to adjudicate and settle the
law relative to the matter in actual controversy between the
parties to the record.
SECURITY FOR COSTS.
39. Upon filing an affidavit that any plaintiff in error is not a
resident of this State, and that no bond for costs has been filed,
a rule shall be entered against him, of which he shall take notice,
to show cause why the writ shall not be dismissed.
LICENSE OF ATTORNEYS*
40. The clerk of each division of this court shall, as soon as
* See Rules, 52, 53, 61 and 67, post.
XX RULES OF PRACTICE.
practicable, procure blank licenses for the admission of attorneys
and counselors at law, printed upon parchment, with appropriate
vignette, and that thereafter licenses shall only be issued upon
such blanks, to be furnished by said clerks. That the clerks
aforesaid shall be allowed to charge each attorney admitted, five
dollars for said blank, including the fee for enrolling the name of
said attorney on the roll of attorneys in his office.
41. Hereafter, all applicants for license to practice as attor-
neys and counselors at law, residing in the Third Grand
Division, who have not been licensed in another State, before
any license shall be granted them for that purpose, shall present
themselves to the court in session, or to a standing committee of
this court, for examination; and no license will be granted to
any applicant in the said grand division until the court shall be
satisfied by an examination, or until such committee, or a
majority thereof, shall furnish a certificate that the applicant for
admission is, by his qualifications, entitled to receive a license.
42. Norman B. Judd, Ebenezer Peck, and Corydon Beckwith,
shall be a standing committee as examiners under the foregoing
rule * [See Kule 57.]
43. Hereafter, reports of committees appointed by judges of
the Circuit Court, or the certificates of attorneys who have not
been appointed by the justices of this court, will not be deemed
sufficient to authorize the issuing of a license to practice as an
attorney or counselor at law.
RULES RESCINDED.
44. All previous rules of this court are hereby rescinded.
TIME ALLOWED FOR ARGUMENT.
45. The time allowed for each argument, in cases before this
court, shall be restricted to one hour, unless otherwise specially
permitted ; but counsel may file, in addition, such written argu-
ments as they may think proper.
Rules adopted in the Third Grand Division, at April Term, 1859.
TIME FOR FILING RECORDS.
46. No case hereafter shall be placed on the court docket for
hearing, unless the record is filed within the first three days of
the term, or within the further time allowed by the court for
filing the record, except in extraordinary cases, the court, upon
special application, may order a cause to be placed on the
hearing docket.
FEES* FOR ABSTRACTS.
47. That after the present term of this court, in all cases
* The examining committee require a certificate, to the effect that the applicant
tor examination has studied two years continuously in the office of an attorney,
one year of which must have been with an attorney in this State.
RULES OF PRACTICE. XXI
where the parties themselves, or their attorneys, shall furnish the
printed abstracts required by the rules of this court, the clerk
shall not be permitted to make any charge or tax any costs
therefor, other than the fee allowed by law for filing the same.
48. That when the parties or their attorneys shall so furnish
abstracts in conformity to the rules of this court, it shall be the
duty of the clerk to tax a printer's fee at the rate of one dollar
for every five hundred words of the manuscript abstract, against
the unsuccessful party not furnishing such abstracts, as costs to
be recovered by the successful party furnishing the same, to
be collected and paid to him as other costs.
49. That there shall be advanced by the party filing abstracts,
^at the time of filing the same, on account of the taxable fees to
the clerk, the sum of five dollars,
50. That the foregoing rule [numbering 46, 47, 48 and 49,]
shall apply only to the Third Grand Division.
[By Rule 55 (see post), the aforesaid Rule 46 is extended to
the Second Grand Division.]
Rules adopted at the January Term, 1860.
SUPERSEDEAS — SUFFICIENCY OF BAIL.
51. That all applications for supersedeas, whether made in
open court or to a justice in vacation, must be accompanied by
an affidavit of the proposed securities, or some other credible
person, justifying the sufficiency of bail, sworn to and properly
certified.
LICENSE OF ATTORNEYS.
52. That the certificate of good moral character of a court of
record required to be produced to the Supreme Court, or either
of the justices, by an applicant for license to be admitted as an
attorney and counselor, must, in all cases, be procured from a
court of record of the county in which the applicant shall reside,
or, if procured from a court of a different county, the applica-
tion shall be accompanied with good and sufficient reasons there-
for, verified by affidavit of one or more credible persons.
53. That the justice to whom application is made for a license
may, at his discretion, require the applicant to submit to an
examination before him, or in open court.
SUPERSEDEAS — ABSTRACT AND BRIEF.
54. That hereafter in every application for a supersedeas, an
abstract of the record, with a brief containing the points and
authorities relied upon, and pointing specifically to those portions
of the record upon which the alleged errors arise, with the record,
shall be presented to the court or judge to whom the application
is made.
ZX11 RULES OF PRACTICE.
55. That rule number fifty be so modified that rule number
forty-six shall apply to the Second Grand Division.
Rules adopted at the April Term, 1861.
SERVICE OF PROCESS, DILIGENCE REQUIRED.
iSG. In all cases in which a writ of order is made a super-
sedeas, the plaintiff in error shall, on filing the record with the
clerk, at the same time order and direct a scire facias to issue
to hear errors, and shall use reasonable diligence to have the
same served ten days before the first day of the term to which
the writ of error is made returnable; on failing so to do, the
defendant in error shall have the right to a hearing at tne said
term, after joining in error, without giving ten days' notice as *
required by rule six : Provided, If there be not ten days between
the allowance of the supersedeas and the sitting of the court, the
cause shall stand continued until the next term, unless by consent
of parties it shall be otherwise ordered.
COMMITTEE OF EXAMINATION IN THIRD GRAND DIVISION.
57. The court being advised that Norman B. Judd, and
Corydon Beckwith, Esquires, desire to be relieved from their
duties as members of the committee to examine applicants for
license to practice law in the courts of this State, heretofore
appointed for the Third Grand Division, under rule forty-two,
Ordered, That Evert A. Van Buren, and William 0. Goudy,
Esquires, counselors at law, be substituted in the place and stead
of Messrs. Judd and Beckwith, as such members. [See Rule 67.]
NOTICE TO PURCHASERS AND TERRE-TENANTS.
58. In all cases wherein guardians, executors and adminis-
trators, or others acting in a fiduciary character, having obtained
an order or decree for the sale of lands in cases ex parte, and a
sale has been had under such decree or order, and the same
shall be brought to this court for revision, the purchaser or terre-
tenants of such lands, if known, shall be suggested to the court
by affidavit of the plaintiff in error, and notice given them of
the pendency of the writ of error ten days before the first day of
the term of the court to which the writ of error is returnable, so
that said terre-tenants may appear and defend.
Rule adopted at the January Term, 1863.
LIBRARY.
59. Ordered, That hereafter, the librarians of the law libraries
attached to this court, shall not permit any person, except those
authorized by the laws of this State, to take from the rooms of
this court any book or books belonging to said libraries. [This
rule was modified at the January Term, 1864, as follows :]
RULES OF PRACTICE. XX111
Ordered, That the rule in regard to taking books from the
library at Springfield, be, and the same is so modified as to allow
books to be taken from said library upon the written order of a
judge of the United States Circuit or District Court.
Rules adopted at the April Term, 1863.
RE-HEARING — ARGUMENT IN WRITING.
< \ Ordered, In all cases where a re-hearing is granted, the
argument will be on paper.
LICENSE OF ATTORNEYS.
61. Ordered, That a diploma from the law school of the
University of Chicago, shall be deemed satisfactory evidence
that the graduate is sufficiently learned in the law to entitle him
to admission to the bar of this court.
Rules adopted at the January Term, 1864, at Springfield.
DOCKET FEE IN CRIMINAL CASES.
62. Ordered, That the clerks of this court do not require a
judge's docket fee in criminal cases.
SHERIFF OF SANGAMON COUNTY — HIS DUTIES.
63. Ordered, That the sheriff of this county attend upon the
sessions of this court in this grand division, in person or by such
deputy or deputies as the court may approve of.
64. Ordered, That said sheriff or said deputies, during the
session of this court, re-place upon the appropriate shelves, and
in their proper places in the library, from time to time, and so
often as they may be taken therefrom, all books belonging to the
library, not actually in use or designed for immediate use by an
attorney or a judge of the court.
65. Ordered, That said sheriff or said deputies, upon the
request of either judge of the court or of any attorney, bring to
them, respectively, any book or books which they, respectively,
may require for use ; and that said sheriff or deputies perform
such other duties as may be required of them by either judge of
the court.
Rules adopted at the April Term, 1864.
MODE OF CITING AUTHORITIES — SIGNING BRIEFS, ETC.
6Q. Ordered, In citing causes from published reports, counse
will be required not only to give the book and page, but also th'
names of the parties as they appear in the title of the reportet
case; and the name of counsel filing brief or abstract mus;
appear to the same.
XXIV RULES OF PRACTICE.
LICENSE TO ATTORNEYS — COMMITTEE.
67. The court being advised that the Hon. E. Peck, Hon. E.
A. Van Buren, and Wm. 0.' Goudy, Esq., desire to be relieved
from their duties as members of the committee to examine
applicants for license to practice law in the courts of this State,
heretofore appointed for the Third Grand Division under rule
forty-two : Ordered, That John A. Jameson, Henry G. Miller,
and Perkins Bass, Esquires, counselors of law, be substituted in
the place and stead of Messrs. Peck, Van Buren and Goudv, as
such members
G A8ES
IN THE
SUPREME COURT
OF
ILLINOIS.
SECOND GEAIfD DIVISION
JANUARY TEKM,1863.
Mathias Ferraria et al.
V.
John Vasconcellos et al*
1. Church property — all are beneficiaries. Where a conveyance cf a
lot of ground is made to certain individual members of a religious body,
who have no corporate existence, in trust, to them and their successors in
office, for church purposes, all the members of the body become beneficia-
ries in such property in an equal degree, notwithstanding some of them
may have contributed a larger sum than others towards the common enter-
prise.
2. Church rights — civil and ecclesiastical — by whom adjudicated.
While the courts will decide nothing affecting the ecclesiastical rights of a
church ; yet its civil rights to property are subjects for their examination ,
to be determined in conformity to the laws of the land, and the principles
of equity.
3. Division in churches — its effect upon thetitle to the common property.
So, where such religious body, after having acquired the church property
* This cause was argued at the January term, 1863, but was not decided until
November of that year.
4— 31st III.
26 Feekakia et al. v. Yasconcellos et at. [Jan. T.
Syllabus.
In the manner indicated, became connected with a particular presbytery,
from which a majority subsequently withdrew, on account of a schism
which arose in the local church on the question of the validity of Roman
Catholic baptism, the minority adhering to their presbyterial connection, it
was held, that whatever may be the ecclesiastical right of a church, or a
portion of a church, to sever its connection with a particular presbytery,
with or without its consent, it does not follow that the majority, in so acting,
become entitled to the property of the church, to the exclusion of the
minority. Their rights still remain, and should be adjusted on the princi-
ples of equity.
4. If the majority have a right to withdraw from the presbytery, so the
minority have a right to adhere to it. Neither act works a forfeiture of
the rights of either, to the church property, because, in neither case has an
illegal act been done.
5. And all the members, the minority adhering to the former church con-
nection, as well as the majority who seceded therefrom, being equally
beneficiaries of the common property, in case of a separation such as is
spoken of, the property should be divided between the two parties in pro-
portion to their numbers at the time of the separation.
6. The fact that the majority, after their withdrawal, elected trustees,
and the minority made themselves a corporation, and also elected trustees,
would not change the aspect of the case ; the trustees of neither of those
bodies would be regarded as the " successors in office " of the original trus-
tees named in the deed, so as to take the title to the property, to the exclusion
of the others.
7. Divisions in churches — departure from doctrine — its effect upon
the title to the church property. As a matter of law, the rule is, that where
a church is erected for the use of a particular denomination, or religious
persuasion, a majority of the members of the church cannot abandon the
tenets and doctrine of the denomination, and retain the right to the use of
the property ; but such secessionists forfeit all right thereto, although but
a single member adhere to the original faith and doctrine of the church.
Per Mr. Chief Justice Caton.
8. Those who contribute to the purchase or erection of a church edifice,
are presumed to do so with reference to a particular form of worship, or to
promote the promulgation or teaching of particular doctrines or tenets of
religion ; and to pervert the property to another purpose, is an inj ustice of
the same character as the application of other trust property to purposes
other than those designed by the donor.
9. Hence it i3, that those who adhere to the original tenets and doctrines
for the promulgation of which a church has been erected, are the sole benefi
ciaries designed by the donors; and those who depart from and abandon
those tenets and doctrines, cease to be beneficiaries, and forfeit all claim
to the title and use of such property.
10. But where a majority withdraw from the ecclesiastical control of the
presbytery, as in this case, and having the right so to do; the minority, in
1863.] Ferraria et al. v. Yasconoellos et al. 27
Opinion of the Court.
the exercise of the same right, adhering to the connection with the superior
body, neither party violates the trust reposed, nor forfeits any right to the
common property.
11. And where neither party has forfeited any right, and the members of
the church thus separated are nearly equal in numbers, the property should
be divided.
12. But it is not to be understood, that such division should be made where
one party or the other consisted of a single member, or but a very few mem-
bers, for then the minority might be regarded as acting obstinately or per-
versely.
Writ of Error to the Circuit Court of Morgan county ; the
Hon. D. M. Woodson, Judge, presiding.
This was a suit in chancery instituted in the court below,
by the plaintiffs in error against the defendants in error. The
objects and scope of the bill, the pleadings and proofs in the
cause, are sufficiently set forth in the opinion of the court.
Messrs. McConnel & Ketchtjm, for the plaintiffs in error,
cited —
23 111. 450, and authorities there cited ; and Miller v.
Grable, 2 Denio, 492 ; Gibson v. Armstrong, 7 B. Mon. 481 ;
Robinson v. bullion, 9 Barb. 64 ; Trustees v. Sturgeon, 9 Bar.
321 ; Miller v. English, 1 Zabriskie E. 317 ; St. John's Col-
lege v. Tedington, 1 Bl. Rep. 84.
Messrs. D. A. Smith, and Cyrus Epler, for the defendants
in error.
Mr. Justice Breese delivered the opinion of the Court :
This cause was remanded for farther proceedings, at January
term, 1862, in order that the parties might have an oppor-
tunity of being heard on all legitimate evidence they might
see proper to adduce on another trial. Yasconoellos et al. v.
Ferraria et al., 27 111. 238, 240.
Much testimony has been taken, making quite a voluminous
record. By the terms of the remanding order, we must look
at the whole case, in the light of this additional evidence,
cumulated upon the former, remaining in the first record. It
28 Ferraria et al. v. Vasconcellos et al. [Jan. T.
Opinion of the Court.
is very clear now, that the case has not been before us, in all
its length and breadth, as at present developed by this record.
More time having been afforded us to take its dimensions, we
are now better prepared to decide the whole case upon its
merits.
To understand it properly, the prominent facts must be stated.
It appears from the bill and proofs, that the parties here
litigating, were known in the island of Madeira as the Free
Portuguese Church, under the jurisdiction of the Free Pres-
byterian Church of Scotland. In 1851, they received the
proper certificate of dismissal from the Free Church Pres-
bytery of Glasgow, and came to this country. The letter of
dismissal required that they should unite with, and come
under the jurisdiction of, the Presbyterian Church of the
United States. On arriving at Jacksonville, in that year, they
assumed to be a religious body, under the name of the Free
Portuguese Church, and determined to erect a suitable build-
ing in which to worship. They purchased a lot, on the first
of September, 1852, at the price of $250, and having no
charter, took the deed in the name of individual members of
the church, as trustees. On this lot they erected their church,
part of the cost of which was subscribed and paid by the
several members of the church, and a part by others who
were not members, but were favorable to the undertaking ; a
large portion of the money, however, expended in the building,
was the voluntary contribution of the Old School Presby-
terian churches of the Eastern States, to be devoted, as the
bill alleges, to building a church of the Old School Presby-
terian order. It was not until April, 1856, that they presented
their letter of dismissal from the Presbytery of Glasgow, and
applied to be received into, and taken under the care of, the
Presbytery of Sangamon. This application was favorably
received, and they were taken into that presbytery. At
this time the congregation numbered about one hundred and
twenty-eight members, and, by their unanimous consent they
were received into this presbytery. This church seemed to
move on harmoniously, and to prosper, until April, 1858, when
1863.] Ferraria et at. v. Yasconcellos et al. 29
Opinion of the Court.
a schism arose in it, producing this litigation. This seems to
have been the origin of it :
The island of Madeira, being subject to the Roman Catholic
crown of Portugal, the Roman Catholic was there the prevail-
ing religion, one of the requirements of which is understood
to be, that all its members shall be baptized according to the
ordinances of that church. With Roman Catholics, baptism
is reckoned one of the sacrements of the church, and it is a
point of belief, with the professors of that religion, that no
person, young or old, can be saved, without it is duly adminis-
tered. Their pastor, the Rev. Mr. De Mottos, it is inferred,
together with a large proportion of the members of this
church, before they proselyted to the Presbyterian faith, had
been baptized according to the forms of this church, in the
island of Madeira, and quite rationally supposed that was all
sufficient — other more conscientious members, not confiding
in the saving grace of Romish sprinkling, had the ordi-
nance again administered to themselves, according to the
requirements of the Presbyterian Church, and thus dissensions
arose. The question was submitted to the Sangamon Pres-
bytery, Was baptism, as ordained and administered by the
Roman Catholic Church, of any validity? A decision against
its validity was rendered by the presbytery, accompanied by
a declaration, as this church had been organized prior to
their jurisdiction attaching, the matter was not of sufficient
importance to proceed with any disciplinary measures against
the r<K~~^nts, but Christian forbearance was recommended
to be exercised by all the parties. Whereupon, the pastor,
Mr. De Mottos, probably deeming secession preferable to
re-baptism, called a meeting of the congregation, and a pro-
position to withdraw from the Sangamon Presbytery was sub-
mitted to it. A vote was taken, alleged by the complainants
to have been very disorderly and illegal, and the result was,
105 for withdrawing, 101 against it. On its announcement,
the doors of the church were closed against the defeated
party, the seceders taking possession of the church and its
properties, and organizing a congregation, with the Rev. Mr.
De Mottos at its head, as pastor.
30 Ferraria et al. ^.Yascokcellos etal. [Jan. T.
Opinion of the Court.
On being advised of this, the Sangamon Presbytery ap-
pointed a committee to visit Jacksonville, to inquire into and
endeavor to settle the difficulties. The church was notified
thereof, and of the day the committee would desire an inter-
view, accompanied by the request that the church should be
present. On the arrival of the committee, they found the
church building closed against them, and learned that a por-
tion of the church had declared their separation from, and
independence of, the Sangamon Presbytery, and refused them
the use of the building. The members of the church were
then requested to meet at another house of worship, in which
the Rev. Mr. Allen officiated. This meeting was largely
attended, for the most part by those who adhered to the pres-
bytery, and they were informed by the committee that those
who adhered to the presbytery composed the church, and
would remain in possession of all the rights and privileges of
the church ; that they should deal kindly and patiently with
the seceding party, and if they persisted in the attitude they
had assumed, that it would be necessary to erase their names
from the church rolls, or in some way exclude them from the
church. Mr. De Mottos having ceased his labors with this
portion of the church, they were promised that the presbytery
would endeavor to procure a pastor for them, and were ad-
vised to continue public worship as before, and to invite the
Rev. Mr. Allen to administer the sacraments, and preach to
them. The committee made a report of its proceedings to the
presbytery, which was approved ; and continued the com-
mittee in existence, and has not yet discharged it. This
church — or fragment — has continued to be represented on the
floor of the presbytery by an elder, its name is still upon the
roll, and its portion of all presbyterial taxes is assessed upon it
and paid as before, and efforts are unremitting to supply it
with a pastor.
Previous to this, attempts had been made by this church to
become incorporated under the statute, but they proved
abortive, when, on this division being brought about, the
complainants in the bill made themselves, on the 17th of
May, 1858, a regular corporation, under the name of the Free
1P63.] Fekraria et al. v. Vasconcellos et al. 31
Opinion of the Court.
Portuguese Church, in pursuance of the provisions of chap.
25, division 3 (Scates' Comp. 979.)
It does not appear that any pastor has been provided by
the Sangamon Presbytery, and the inference from the facts,
is, that the seceding party are in the constant use of the
church property, the pulpit being filled by the Kev. Mr. De
Mottos, the adhering party being either excluded, or declining
to participate in its use, or worship in it.
Like all quarrels among religious sects, always the most
inveterate, this grew daily more intense. This bill in chan-
cery, and the tedious and expensive proceedings under it, are
the fruits.
The bill prays for the restoration to complainants of the
church edifice and property, as the legal owners under the
deed, and in virtue of their election as trustees.
The defendants, i« their answer, insist, that they are the
lawfully constituted trustees of this church, and that the title
to the house and lot is vested in them, and their successors
in office, in trust for the majority of that church, and deny
that the' plaintiffs are the legally authorized trustees. They
further say, in answer, that in the spring of 1858, the congre-
gation of this church held a meeting and took a vote, on the
question of remaining in the Sangamon Presbytery, and
the vote resulted 89 in favor, and 106 against remaining ; that
they have never refused the complainants, or any of the
members, the privilege of worship in this house ; and in bar
of the claim set up, they allege that the election, under
which complainants claim to be trustees, was not held at the
church ; they further say, that the moneys collected to build
the house, were raised and bestowed without regard to the de-
nominational character of the church. The respondents claim
to have been elected trustees on the 8th of October, 1855, and
as such, the legal title to the lot and church is vested in them,
and their successors in office, for the use of the majority of
the church ; and they insist, that the deed under which they
claim the property, declares no trusts or uses relating to the
ecclesiastical preference or connection of their church, but
was for the use of the church, or a majority thereof, sc
32 Ferraria et al. v. Vasconcellos et al. [Jan. T.
Opinion of the Court.
long as they should continue their organization, irrespective
of any question of any particular ecclesiastical rule, or the
claims and pretensions of any dissatisfied, disaffected, or schis-
matic minority.
A general replication was put in, proofs taken, and on the
hearing the bill was dismissed. The cause was brought by
writ of error, to the January term, 1860, of this court, and
the decree reversed, we deciding, with the lights then before
us, that the legal title to the lot was vested in the complain-
ants as trustees, and that the minority, which they represented,
were the true beneficiaries.
This decision (Ferraria et al. v. Vasconcellos et al., 23 111.
459,) proceeds upon the ground that the election held after the
division in the church, on the 17th of September, 1858, con-
forming, as it did, to all the requirements of the statute, (chap.
25, title " Corporation," Scates' Comp. 979,) organized a cor-
poration, and that by the withdrawal from the Sangamon
Presbytery, though the act of the majority, the seceders were
no longer the beneficiaries in this trust. There was then no
evidence before us, that the laws and usages of the Presbyterian
Church authorized any individual church to withdraw from a
presbytery of that body, without consent being asked and
obtained. We presumed, in the absence of such proof, that
neither the constitution or iaws and usages of that church,
recognized such right, and therefore held, that the majority,
having no right to sever this connection, unless by mutual con-
sent, any portion of its members who continued to hold the
tenets, and conform to the usages and authority of the gen-
eral organization of the body, must be recognized as the church,
and entitled to its property and effects.
On the rehearing in the Circuit Court, after the cause was
remanded, the defendants presented evidence on the question
of the right of a church, under the constitution, government
and usages of the Presbyterian Church of the United States
of America, to withdraw from a presbytery without its con-
sent, but under a misapprehension of the extent of the decision
in 23 111., the Circuit Court rejected the evidence.
The case was again brought here by writ of error, ( Vascon-
1863] Febbaria et al. v. Vasconcellos el al. 33
Opinion of the Court.
cellos et al. v. Ferraria et al., 27 111. 238,) and this misap-
prehension of the court below corrected, and the cause again
remanded. In this opinion we said, if the right to withdraw
by a church, at pleasure, does exist, according to the constitu-
tion, government and usages of the general organization, it
must be proved as a fact, and like any other fact, must
depend upon the evidence adduced on the trial, and therefore,
this additional evidence should have been admitted. We
said, further, if this evidence establishes the right to withdraw,
the action of the majority was regular, and the vote of the
majority, not having been protested against at the time, and
no appeal taken to any judicatory of the church, had the
effect to render the church independent of the Sangamon
Presbytery, and by its withdrawal, all the rights and property
of the church followed. But, we say, inasmuch as the counsel
for the defendants in error, seem to have acted under a mis-
apprehension of what we intended to decide by the first opin-
ion, and may have been prevented, thereby, from taking
further evidence, and from cross-examining the witnesses, in-
stead of rendering a decree on the evidence, we will reverse
and remand the cause for further proceedings, that the parties
may have the opportunity of being heard, on all legitimate
evidence they may see proper to adduce on another trial.
Id. 240.
The evidence of some of the most distinguished and learned
divines of the Presbyterian Church, some of them well and
most favorably known to the court, was taken, and submitted
to the Circuit Court, on this remand, on which that court
dismissed the bill, and the complainants again bring the cause
to this court by appeal. The new evidence taken, makes
quite a volume, all of which we have examined with great care,
admiring, while doing so, as well the frankness and impar-
tiality, as the intelligence which pervades the testimony.
Eminent divines of both the Old and New Schools, so called,
were fully examined, and the record now before us, is the
result. We do not propose to review all the testimony, but
touch merely its most salient points, and announce what we
understand from it, to be the law and usage of the Ploy-
s'— 31st III.
34 Ferraria et al. v. Vasconcellos et al. [Jan. T.
Opinion of the Court.
terian Church on this question of withdrawal, and the effect
and consequences of a withdrawal. The counsel for the de^
fendants in error seem to understand the decision in 27 111. as
settling the legal and equitable rights of the parties, irreversi-
bly. We do not so understand it. It is still an open question,
to be now settled by this record. It was for this very purpose,
the parties were permitted to take this testimony, and it is
upon it, their rights are to be finally decided, and the cause
to be now adjudged.
The weight of this testimony seems to be in favor of the
right claimed by the defendants in error.
Four witnesses examined on the part of the complainants,
pastors of Old School Presbyterian churches, deny the right
to withdraw, without the consent of the ruling presbytery.
The first one, the Rev. Charles P. Jennings, who has been near
twenty years in the Presbytery of Sangamon, professing to be
familiar with the constitution and laws of the Presbyterian
Church of the United States of America, says, that they make
no provision for the secession of a church from its presbytery,
and that the offer or attempt to withdraw, would subject such
church to discipline. He further says, if a majority of the
members of a church, by vote or otherwise, without consent
of the presb}Ttery, withdraw therefrom, and a minority still
adhere to the old organization and to the presbytery, the
adhering party, be it great or small, would be the church,
having all the rights thereof, including the church property.
He further says, the Sangamon Presbytery does not recognize
the fact, that this church ever took any vote to secede, what-
ever certain of its members may have done, and that the
church has not seceded, and has not subjected itself to disci-
pline. This church was instructed by the presbytery, through
the agency of a committee regularly appointed, to exclude
these seceders from the church, if they did not repent and
come back to the rule of the presbytery. Mr. Jennings'
written answers, to various questions subsequently propounded,
do not change or modify what is here stated.
The Rev. John G. Bergen, who has been a minister of tho
gospel in the Presbyterian Church for more than fifty years,
1863.] Ferraria et al. v. Vasconcellos el at. 35
Opinion pf the Court.
and who has knowledge of its constitution, laws and usages,
coincides. So also does the Rev. John H. Brown, who has
been an officiating minister in this church for thirty-four years.
The Rev. Robert W. Allen, the officiating minister of the
Presbyterian Church at the place of these difficulties, a mem-
ber of the Sangamon Presbytery, and who has been twenty-
two years in the ministry of .that church, states that since the
secession of the defendants, there has been no change in this
church ; that it is the same Free Portuguese Church it was
originally, when it came under the rule of the Sangamon
Presbytery, with this difference, that the seceding members
do not now belong to it. That they have rejected the tenets
of the Presbyterian Church of the United States, on the
subject of Roman Catholic baptism, and having withdrawn
from the presbytery without its consent, and contrary to the
laws, rules and regulations of that church, cannot take and
hold the property or church edifice, to the exclusion of the
church consisting of the adhering members. He distinctly
says, there is no law of the church authorizing them so to do.
This gentleman also says, that one month before the election
to withdraw, the whole number of members did not exceed
one hundred and eighty or one hundred and eighty-five.
These are all the witnesses, to these points, produced by the
plaintiffs in error. By arrangement of the parties, a circular
letter was addressed to many eminent divines of the Presby-
terian Church, containing five distinct and separate interroga-
tories, on these disputed points, on behalf of the defendants
in error, and two on behalf of the plaintiffs, with an agree-
ment, that their answers on honor should be read as evidence.
The following were the questions propounded :
" Can or not, a church which is united to a presbytery of
the Old School denomination, by a vote, withdraw from such
presbytery without its consent, and yet their action be con-
sistent with the usages and laws of such church denomi-
nation ?
" If the members of such church do so withdraw, without
consent, has not the presbytery the right of discipline and
censure over such church, according to the usages and laws of
such Old School denomination ?
36 Fbebaria el al. v. Yasconoellos et al. [Jan. T.
Opinion of the Court.
" When a church has been erected as an Old School Pres-
byterian church for the use of a congregation of that order,
and they have, after the erection and purchase of the property,
united themselves to a particular presbytery, and afterwards a
vote is taken to withdraw, and the majority do so withdraw
from such presbytery, the minority remaining with it, will
such vote and withdrawal of the majority be in accordance
with the laws, customs and usages of the Old School Presby-
terian Church, and will such action of the majority entitle
them to the church property according to those laws, customs
and usages, and that, to the exclusion of the minority who
yet adhere to the presbytery ? "
On the part of the plaintiffs in error, these questions were
propounded :
" Is it or not, consistent with the constitution, government
and usages of the Presbyterian Church in the United States
of America, for the members of a church of that body, by
consent, to take a vote as to their adherence or non-adherence
to a particular presbytery without its consent; and what
especially, has been the history of that church in this regard,
since the formation of two General Assemblies ?
" Is it or not, in your estimation, essential to Protestant
freedom that every church, by mere consent of its members,
may take a vote as to their ecclesiastical connection ? "
The Kev. Edward F. Hatfield, a member of the third
presbytery of New York, after stating his official position
in the Presbyterian Church, and his familiar acquaintance
with its laws, history and usages, says, the distinctions, Old
School and New School, are not known in official records. In
answer to the first question herein written down, after speak
ing of a minister renouncing the fellowship of the church, . he
says: "The congregation, under the care of such minister,
ought to be held as still under the care of the presbytery,
unless they give evidence that they have also withdrawn, in
which case their name ought also to be struck from the list of
congregations belonging to the presbytery."
In answer to the second question, he says: "They have
nothing to do with a church thus withdrawing, but to strike
its name from their roll."
1863.] Fekbaria et al. v. Yasconcellos et ah 37
Opinion of the Court.
In answer to the third question, he says : " The rights of
property are to be determined not by ecclesiastical, but by
civil courts. These courts of civil jurisdiction are governed
by the action of the major part of the church. T 3y are the
church. The minority are not. These last may withdraw
from the church, and form a new organization, but cannot
take the place of the old church. Such have been the uniform
decisions of the civil courts."
In answer to the remaining questions, he says : " The right
of churches, presbyteries and synods to determine by their
own vote, to which of the two bodies claiming to be the
General Assembly of the Presbyterian Church in the United
States of America, they will adhere, has been repeatedly
exercised since 1838, warranted by act of assembly, and can-
not be questioned. This right is in perfect accordance with
the genius of our ecclesiastical and political institutions, and
should never be relinquished by the advocates of a free press,
free speech, and freedom of opinion."
Among the eminent clergymen to whom these questions
were put, is the Rev. Robert J. Breckenridge, D. D., of Ken-
tucky— acknowledged, by universal consent, one of the
brightest ornaments of the Presbyterian Church, learned, wise
and unprejudiced. After stating his long ministry in the Old
School Presbyterian Church, and his knowledge of the laws
and usages of that church, derived from careful study and
diligent practice, in answer to the first question, in the order
we have written them, says : " Theoretically, no. The
church is one ; improper separation from it is schism, which
is a sin ; proper separation is not contemplated as possible.
Practically, churches leave our body when they please, without
being pursued by discipline, and we accept them, when they
come to us from other denominations, without scruple. But
in neither case, does the church undertake to determine what
is or ought to be, or may be, the civil consequences of such
change."
To the second question, in the same order, he says : " There
is a difference between the church withdrawing, and the mem-
bers withdrawing, unless it is meant all the members, or at
38 Ferraria et al. v. Vasooncellos et at. [Jan. T
Opinion of the Court.
least a considerable majority. I do not suppose that in either
case, if the mere withdrawal was the only offense, it would
be followed with discipline, certainly not, if the number with-
drawing was large. In spiritual matters the church would
recognize and support a minority, no matter if it should be
very small. In all civil, especially in all property matters,
the church claims no jurisdiction, and gives no advice, except
that men should act with justice and forbearance."
Upon the remaining questions, he says : " The Presbyterian
Church, as matter of discipline, would require the laws of the
land and the rules of sound morals to be respected, by whichever
party adhered to her. Whichever party went out from her, she
would probably take no account of. The church, as such,
does not own any property. Our congregations hold their
property according to such principles and forms as are pre-
scribed by law in different places. Our church has neither
law nor usage except to disavow all power over the civil effects
of such proceedings as are hypothetically stated in the inter-
rogatory. The right of the parties in the case stated, would
depend on the conditions of the title to the property, and the
rules of the civil law, as judicially applied. There certainly is
no rule or usage of the church, by which a majority may rob a
minority, or a minority rob a majority, or the votes of either
of them, unsanctioned by a presbytery or still higher church-
court, may work mischief, civil or ecclesiastical, to the other.
The whole power of rule and order in that church, is in the
hands of church officers, united into tribunals, and not in
the hands of popular assemblies. The distinction between
Presbyterianism and Congregationalism lies here in the first
instance."
To the first interrogatory of the plaintiff in error, he says,
he does not know that he understands it, but answers, u it would
be competent to a presbytery to consent that a congregation
should take a vote as to adhering or not adhering to it, and
the vote so taken would be a means of certain knowledge to
the presbytery. But this is all the ecclesiastical effect the
vote could have, without further action of the presbytery,
and no act of presbytery could give any civil effect to such a
vote, according to any law or rule of the church. If what is
1863.] Ferraria et al. v. Vasconcellos et at. 39
Opinion of the Court.
meant is, thaf both presbytery and congregation consented to
the taking of the vote, previous to its being taken, of course,
fair dealing would require that all parties should acquiesce, as
far as they have power, in the fair and legal results of the
votes. But what are the results of that sort, depend upon
many contingencies and questions peculiar to each case. The
practice of the churches, since the division in 1837-8, has not
been uniform, nor do I know of any law of any church on
the subject. The strong and uniform advice of our General
Assemblies (Old School) has been, that majorities should treat
minorities with forbearance and justice, and to minorities, that
they should not make schism, or go to law, if it was possible
to avoid those extremities. In the present case, as far as I
can judge, the difficulties do not appear to be very relevant to
matters involved in the advice of our assembly."
To the remaining question, he answers, "It is undoubtedly
essential to Protestant freedom, that each person should be at
liberty to withdraw from whatever church he may belong to.
But this freedom does not demand, that he should, by that
withdrawal, be discharged from all responsibility incurred
while he was a member. As to corporate and aggregate
actions, there are very serious limitations to this supposed
freedom of a majority to carry off a minority, or to carry off
its vested rights, or to violate mutual engagements or obliga-
tions of any sort in going off. I am not acquainted with the
merits of this case, and have no opinion about them, nor am
I able to see how any thing in the principles, rules or habits
known to me, of the Presbyterian Church, bear controlingly
on its decision."
We have given these statements and depositions literally,
as specimens of the others, and will extract from the others
only such parts as may be opposed to, or in harmony with,
them.
The next in order, is an elaborate statement by the Rev.
Mr. Jennings, which, being but an amplification of his testi-
mony, already given in his own language, we forbear again
to state.
40 Ferraria et at. v. Vasconcellos et al. [Jan. T.
Opinion of the Court.
The next, is the concurrence of the Rev. Mr. Bergen, and
the Rev. Mr. Brown, in the statement of Mr. Jennings.
A number of other depositions were taken by defendants in
error, of ministers of the New School Presbyterian Church,
in which there is found an entire concurrence in the state-
ment, that since the division of the church in 1838, churches
of this denomination have withdrawn without the consent of
their presbyteries, and without censure or discipline, or being
called in question, in any way, by the higher judicatories of
the church, and they have been allowed by vote to withdraw,
without censure or discipline. Numerous instances are given
of this, by the witnesses. Without speaking as to its consti-
tutionality, they all concur in saying it is the constant usage
and practice in the churches of both schools. They also say,
it has been the usage of that church to consider it a right in
the seceding party, if a majority, to take with them the prop-
erty of their church. The Rev. Mr. Nutting thinks, when a
church unanimously agrees to take a vote, the result of which
may be to sever its connection with the Presbyterian Church,
that all those thus agreeing, have thrown off their allegiance
to that church ; that a majority of the membership represent
that local church, and that any subsequent organization,
formed of a minority of its members, would become con-
nected with the Presbyterian Church only by a special act,
re-establishing their connection. When an attempt has been
made to change the form of church government, and to carry
to some other body or denomination, the control of church
property, specifically granted for the uses of the Presbyterian
Church, a minority remaining in connection with that church,
have been held entitled to the control of such property, to
the exclusion of the majority, and to be considered the
original church for the purpose of holding such property. In
all other cases, the majority constitute the church ; this is in
accordance with the laws, usages and constitution of the Pres-
byterian Church of the United States — each local church has
control over its own property, and the majority have the right
to the property. Mr. Nutting also thinks that if a majority
of the membeis of a Presbyterian church, owning property
1863.] Ferraria et al. v. Yasconcellos et al. 41
Opinion of the Court.
purchased and paid for by the members, and attached to a
particular presbytery, should choose to renounce the tenets of
that church, and join the Roman Catholic Church, or the
Umversalists, or Deists, that they would have a right to take
and own all the property of their original church, to the ex-
clusion of the minority, who would not consent to turn Catho-
lics, Universalists or Deists ; and this, by the laws, usages
and constitution of the Presbyterian Church. He says he
would consider it, morally, a great wrong and hardship to the
minority, that property so given, should be perverted to such
uses, but he sees no help for it.
The Rev. Mr. Hamilton concurs, as to the uniform practice
of these churches, both before and since the division, of with-
drawing, with or without consent first obtained. He thinks
that in a regularly organized church of the Old School denom-
ination, regularly attached to a presbytery, if a division arises
among the members, as to their tenets and belief, touching
baptism, or any other essential, and one party secedes from
the presbytery and denies its jurisdiction, and the other
adheres to the presbytery, and to the original tenets of the
church, and the two parties thus become entirely separated,
the elders of the church going with the seceding party, and
the adhering party elect new elders, and reorganize the
church, that the seceding party is the old church, and the ad-
hering party a new church, and the property would go to the
withdrawing party. He is of opinion, that with whichever
party a majority of the elders of the church may be, that is
the church.
In addition to all this, the written statements, on honor, of
other clergymen were received. One of them, the Rev. Albert
Barnes, of Philadelphia , says, that if a majority of a church
vote to withdraw, such vote transfers the church from its
former ecclesiastical relation, and the church property, of
course, belongs to and follows the church ; but whilst the
majority are thus entitled, equitable, fair and just considera-
tions ought to govern as to the minority, so that by the exer-
cise of a spirit of christian forbearance and tenderness, the
6 — 31st III.
4:2 Ferraria el al. v. Vasconckllos et aL [Jan. T.
Opinion of the Court.
minority, as individuals may not feel that they have been
harshly dealt with, or deprived of their rights.
The Rev. Mr. Mills says, all questions of property are
settled by the civil courts, and when the title is vested in the
congregation, and not connected in any manner with the pres-
bytery, or synod, or general assembly, it is always understood
that it goes with the majority; and such is the opinion of
the Eev. Mr. Nelson.
The Rev. Cyrus L. Watson says, when a lot has been pur-
chased, and a house of worship erected for the use of a Pres-
byterian congregation, a majority of that church cannot,
constitutionally, go out of it, and hold the property, while the
minority refuse their consent and adhere to the original com-
pact. He thinks, if the church consents to take a vote to
withdraw from a presbytery, such vote would be a pledge, on
the true principle of Presbyterianism, that the will of the
majority should be obeyed, and the minority morally bound
to stay or go with the majority, as the vote might be. If a
majority go off factiously, they are a secession, and forfeit
their claim on the property.
The Rev. Mr. Hale thinks any Presbyterian church has
the right, by a vote of the majority, to change its ecclesiastical
relations, and only in case of special provisions in a deed to
the contrary, is its property liable to forfeiture ; and is not
aware of any custom in the Old or New School bodies to
the contrary. A reference is made by him to Judge Gibson's
opinion, in the case of the Presbyterian Church of York,
reported in 1 Watts & Sergeant, 1.
The Rev. William L. Tarbet, in speaking of the consequences
of a withdrawal by a vote of the majority, says, the majority
being justly entitled to their proportionable share of the
church property before their withdrawal, and having made
no cession of the property, either to the presbytery with
which they were connected, or to the minority with whom
they were in christian fellowship, and who still remain in
connection with their presbytery, he cannot see how their
withdrawal from the presbytery should divest them of their
just title to that which was their own. In harmony with the
1863.] Ferraria et al. v. Yasconcellos et al. 43
Opinion of the Court.
general customs, laws and usages of the Old School Presby-
terian Church, they are justly entitled to share in an equitable
and proportionate division of the church property, not, how-
ever, to the exclusion of the minority, who, like themselves,
are entitled to an equitable division of the property.
The Rev. Robert W. Patterson, of Chicago, gives his views
at large, and very sensibly remarks, as some of the other
witnesses have done, that the ecclesiastical rights of a church
are not to be confounded with its pecuniary or property
rights. The presbytery may properly recognize an adher-
ing minority of a church under its care, when the majority
have withdrawn, without the consent of the presbytery, as
the church in ecclesiastical succession. But the question to
whom the property belongs in such a case, is to be settled by
principles of equity and law, which are not affected by pres-
byterial consent or dissent. If the property of an Old School
church was acquired while the church was in connection with
the Old School denomination, it would probably be held, by
most Presbyterians, that such property could not be equitably
carried away from that connection, by a mere majority vote,
against the remonstrance of a minority of the church, and
this, because of the presumption, that the parties who con-
tributed for the purchase of the property, did so, for the
purpose of establishing a church in that particular connection.
He thinks the case would be different, when the property was
acquired before the church entered the Old School connec-
tion, and has left its original denomination without any
stipulation or definite understanding as to the conditions on
which the property should be held after the transfer of eccle-
siastical relation. He thinks the reasonable presumption, in
such case, would be, that the congregation had, by common
consent, waived the purpose of holding the property for a
specific denominational use, and had, for prudential and
general reasons, united with another denomination represent-
ing the great principles which it was their purpose to sustain
and advance, when the property was acquired. He refers
also to the opinion of Chief Justice Gibson in the York
Presbyterian Church v. Johnston, 1 Watts & Serg., and says
41 Ferraria et at. v. Vascongellos et al. [Jan. T.
Opinion of the Court.
it is approved by competent judges of law and equity, in the
Old School Presbyterian Church. He is of the opinion also,
that the consent of parties, or of the whole church, to decide
by vote, whether or not the church should withdraw from the
presbytery, and join another body of Presbyterians, implies an
agreement, and moral obligation on the part of the minority,
to submit to the decision of the majority, whatever may be
said of the right of the majority to act without such consent.
He is not aware that the civil or moral right of a church to
change its relation from one Presbyterian body to another, by
unanimous consent, has ever been called in question in the
former history of this denomination. Since the division, in
1838, many churches have transferred their relation from one
branch of the church to the other, both ways, without any
prejudice to their property or claims.
He also, as the others who have testified on behalf of
defendants in error, deems it essential to Protestant freedom,
that each church should be allowed to change its ecclesiastical
relation, by mere consent of its members, provided, that in so
doing, it disregards no stipulation into which it has entered,
and perverts no property from the general purposes for which
it was acquired.
In these statements the Rev. Z. M. Humphrey, and the Rev.
J. Ambrose Wight, express their full concurrence.
The record further shows, that on the 4th of April, 1862, a
communication was received by the Sangamon Presbytery
from Mr. De Mottos, through Dr. Bergen, dated March 28,
1862, notifying the presbytery of his withdrawal therefrom.
A committee having been raised. to inquire into this matter,
on the 3rd of April, he again addressed the presbytery, and,
apologizing for the abrupt character of his first letter, asked
to be dismissed to the Presbytery of Illinois, which request
the Sangamon Presbytery refused.
The old committee, appointed in April, 1858, of which the
Rev. Mr. Jennings was a member, and who, in his testimony
hereinbefore quoted, he said was not discharged, reported that
they had learned from the session of the Portuguese Church
at Jacksonville, that at the time of the secession, the Rev
1863.] Febbabia et al. v. Vasoonoellos et al. 45
Opinion of the Court.
Mr. De Mottos, and the elders who went with the seceders,
retained and took with them the sessional records of that
church; whereupon, the committee instructed the session,
that the records belonged to the church session, and if they
should regain possession of the records, it would be their
duty to erase from the roll of communicating members, the
names of those persisting in secession, and were not at liberty
to recognize the secession as the Free Portuguese Church of
Jacksonville, by giving any of their members letters dimis-
sory, to the secession, nor by any other act; that all who
were disposed to return to the church should be encouraged ;
that should any of the leaders of the secession apply to be
restored, they should be required to make suitable acknowledg-
ment of their offense, as a condition of their restoration, and
that all should cherish and manifest a spirit of meekness,
forbearance and humility towards all opposers. The report
concluded with the recommendation that this resolution be
adopted, which was done: "Whereas it has come to the
knowledge of this presbytery, that the sessional records of
the Portuguese Church (Free Portuguese), Jacksonville, were,
at or about the time of the secession from said church, in
May, 1853, retained by the Rev. Mr. De Mottos and the
seceders, for the use of said seceders ; and whereas the said
Mr. De Mottos is still a member of this presbytery, and
amenable thereto, inasmuch as said presbytery has not con-
sented to his withdrawal; therefore Resolved^ that the said
Rev. Mr. De Mottos be and he is hereby required to deliver,
without unnecessary delay, said sessional records to John
Jacinto, or some other elder of said church, now acting therein
and reconized by this presbytery."
We have now stated the substance of all the facts, opinions,
arguments and inferences of the many intelligent witnesses
who have been examined in the cause, whereby it will be
seen, whilst the ministers of the Old School Presbyterian
Church are of opinion that, by the constitution, laws, usages
and customs of the Presbyterian Church, a congregation,
attached to one of its presbyteries, cannot withdraw there-
from, without the consent of their presbytery, those of the
4:6 Ferraeia et al. v. Yasoonoellos et al. [Jan. T.
Opinion of the Court.
New School are equally decided, in view of the same con-
stitution, laws, usages and customs, that any church can with-
draw from its presbytery without consent, and that this
privilege is essential to Protestant freedom. All concur, that
the withdrawal must be by a majority vote, and the vote
taken with the consent of the congregation. In regard to
what the consequences may be, as to the rights to property,
upon such withdrawal, opinions differ; the majority agreeing
that it depends on the title by which it is held, and the
purposes for which it was acquired.
The points of difference apparent in the testimony we shall
not comment upon, nor shall we attempt to decide which
party has the legal title to this property, as we are not satisfied,
on the proofs, of the perfect fairness of the vote alleged to
have been taken on the question of withdrawal. There is
room for much doubt on that point, and as the title to the
property would seem to depend, in a great degree, on that
vote, we ought to be entirely satisfied before we make it the
basis of our decision, or give it that weight the defendants
in error claim for it. We shall, however, admit that the
defendants in error now represent the majority of the church,
but we cannot admit that they are, therefore, entitled to the
exclusive ownership and use of the church property. We
must believe, the minority, large in numbers, have rights in
it, which a court of equity should respect ; that they should
not be harshly dealt with, or be made to feel, that for their
adherence to what they conscientiously believed to be a
religious obligation, they justly incurred a forfeiture.
Whilst we will decide nothing affecting the ecclesiastical
rights of a church, which we are not competent to do, its civil
rights to property are subjects for our examination, to be
determined in conformity to the laws of the land, and the
principles of equity.
We have looked into the case referred to by the Rev. Mr.
Hale, and the Rev. Mr. Patterson, in 1 Watts & Serg. 1. It
was an ejectment, brought by the trustees of the English
Presbyterian congregation, of the borough of York, against
James Johnston and others, to recover a church and two acres
1803.J Fbrraeia et al. v. Yasconcellos et ah. 47
Opinion of the Court.
of land, in that borough. The plaintiffs claimed under a deed
from the heirs of William Penn, and a charter of incorpora-
tion by the State of Pennsylvania.
The deed conveyed the land to three persons named in it,
in trust, " for and as a site for a house of religious worship,
and a burial place for the use of the said religious society of
English Presbyterians, and their successors, in and near the
said town of York, etc., to be forever at the disposal, and
under the care, regulation and management of the said reli-
gious society and their successors, in and near the town of
York aforesaid," etc. The congregation having agreed upon
certain articles and provisions, as the terms of their incorpor-
ation, chose certain persons as trustees, and were incorporated
by the name, style, and title of the '; Trustees of the English
Presbyterian Congregation in the Borough of York."
The suit was brought in the name of the corporation, at the
instance of a minority of the congregation, who, having with-
drawn from its stated worship in the church building, insisted
that the majority had forfeited their corporate rights by dis-
solving the connection with the Presbytery of Carlisle, and
the primitive General Assembly. In other words, had joined
the "New School."
Chief Justice Gibson, and a majority of the court were of
opinion that by withdrawing from the Carlisle Presbytery, the
majority had forfeited no right to the property. That it was
not stipulated in the deed, the church should belong to any
particular presbytery — no such condition was expressed or im-
plied, and that whilst the majority conformed, as nearly as it
could, to the principles of its original faith, it lost none of its
rights. Before it could lose them, it must swerve from its
original, and embrace hostile, tenets. He admits, that a sub-
jection to a particular judicatory may be made a fundamental
condition of a grant, and when that is shown, abjuring the
particular judicatory would forfeit the property.
He says also, even without an express condition, it might be
a breach of the compact of association, for the majority of a
congregation to go over to a sect of a different denomination,
though it were different only in name. For instance, the
4:8 Fbrraria et al. v. Yasconcellos et al. [Jan. T.
Opinion of the Court.
majority of a congregation of seceders, could not carry the
church property into the Presbyterian connection, though
these two sects have the same standards and plan of govern-
ment. The opinion concludes, by saying, that no particular
Presbyterian connection was prescribed by the founders (the
deed), or established by the charter ; and that if such con-
nection had been prescribed, there has been no adhesion to a
connection essentially different, and that the breaking up of
the original Presbyterian confederation, (alluding to the divi-
sion in 1838), has released this congregation from adhering to
any particular part of it, in exclusion of another.
In this case the court say, it may be demanded, to what is
the minority of a dissentient congregation to appeal ? The
answer is, To the justice and forbearance of the association,
whose very object is, to deal justly, love mercy, and walk
humbly, it is supposed the minority cannot appeal in vain.
In this case, the equitable rights of the parties could not be
adjusted — the strict legal right only, as derived from the
deed and charter, could be inquired into. In the case before
us, the deed declares no trust, although executed to certain
persons designated therein, as trustees of the Portuguese
Free Church, located in the town of Jacksonville, and to their
successors in office. We have held in the case between these
parties (23 111. 459), that the plaintiffs in error were the duly
elected trustees of the church, and therefore the successors in
office of the original grantees. The fact insisted on by the
defendants in error, that, since the separation they have been
elected trustees, therefore they are the lawful successors in
office of the first grantees, only shows that each party has
elected its own trustees, and does not change the aspect of the
case, as we view it.
We find no case approaching in its facts any nearer this
case than the one cited. We have been referred to others,
decided by the courts in New York and New Jersey, the facts
in all of which differ essentially from the facts of this case,
and their statutes are peculiar.
The case of Curd et al. v. Wallace et ah, 7 Dana (Ky.) 190,
has been cited, as similar to this.
1863] Fekraria et al. v. Yasconcellos et at. 49
Opinion of the Court.
That case arose out of the conflicting claims of two sepa-
rate societies of professing Christians to the use of a house of
worship, called the Mount Yernon meeting-house, erected by
the voluntary contributions of persons in its neighborhood,
and dedicated by them to " the benefit of the Baptist society,
but free for all gospel preachers invited by any of the sub-
scribers, on days not occupied by them."
A Baptist church, organized in the neighborhood, called
" The Church of Christ," took possession of the house, and
continued to use it as a house of public worship, until, the
number of the members having largely increased, dissension
sprung up, some of the congregation, John Curd and twenty
others having become " Campbellites," or "Reformers," some
were expelled, and others seceded and organized a new
society, and having appointed one of their number their
pastor, they claimed and attempted to enjoy an equal use of
the meeting-house. This claim being resisted, the matter was
referred to the arbitration of two gentlemen selected by the
parties, who decided that as neither of the churches was, in
their opinion, a " Baptist Society," according to the under-
standing of those who built and dedicated the house, at the
time of the dedication, neither of them had any legal right to
the occupancy of it, but they nevertheless awarded that as
each of them contained members who were original sub-
scribers, and heirs of such subscribers, each should occupy the
house an equal portion of the time, alternately.
The old church being dissatisfied with this award, as not
within the terms of the submission, they, by their trustees,
Wallace and others, filed a bill in chancery against Curd and
the others, as the trustees of the new church, to set aside the
award, and to enjoin the new church from disturbing the old
church, in the exclusive enjoymentof the house.
The Circuit Court perpetually enjoined the new church ; and
they appealed.
It is only necessary to examine one of the grounds of deci-
sion in the Court of Appeals.
In Kentucky there is a statute, enacted in 1814, which pro-
vides, if any schism or division shall take place in a congre-
7— 31st III.
50 Febeakia et al. v. Vasconcellos et al. [Jan. T.
Opinion of the Court.
gation or churchy from any other cause than the immorality of
its members, nothing in the act shall be so construed as to
authorize the trustees to prevent either of the parties so
divided, from using the house or houses of worship for the
purposes of devotion, a part of the time, proportioned to the
number of each party ; and that nothing contained in the act
should be construed to authorize the minority of any church,
having seceded from, or been expelled, or excommunicated
from the church or congregation, from interfering in any
manner in their appointments for preaching or worship, with
any appointments for similar purposes which may have been
made by the body or the major part of such church or con-
gregation.
The court, in deciding the case, say, as the property was
dedicated since that enactment, the remedy of the defendants
in error must, in some respects, be considered subject to these
provisions, and the Circuit Court had no right to give relief
beyond the measure prescribed by the proviso; whereupon
they reversed the decree, and remanded the cause, with in-
structions to the Circuit Court to decree that the plaintiffs in
error, and the church which they represent, be enjoined from
using, or attempting to use, the meeting-house, otherwise or
oftener than shall be consistent with the exclusive right of
" the Church of Christ," or old church, to use it according to
its own appointments, to be made in such a manner as to leave
to the new church, in good faith, so much of reasonable time
as shall correspond with the ratio of its number of constituent
members, as composed from time to time of seceding members
of the old church, to that of the elder and then major church ;
and the new church be also enjoined from disturbing u the
Church of Christ," or old church, in the peaceful enjoyment of
the exclusive use of the meeting-house, according to the
appointments which they might make.
The court divided the use of the church.
The case of Shannon et al. v. Frost et al., 3 B. Monroe,
253, decides that a conveyance of real property to a church
vests in each member so long as he or she shall continue such,
and no longer, and that excommunicated members have no
1863. J Ferraria et al. v. Vasconcellos et al. 51
Opinion of the Court.
such interest therein, as will authorize them to maintain a
suit in relation to it.
The case of Gibson et al. v. Armstrong et al.9 7 id. 481,
has some bearing on the case before us.
This was a contest between two portions of the former con-
gregation of members of the Methodist Episcopal Church at
Maysville, each claiming, as a distinctly organized society or
congregation, the exclusive use and control, for the purpose
of worship, of the church building.
The deed under which both parties claimed, was executed
in 1812, for the consideration of fifty dollars paid to the
grantor, and conveyed to five named trustees and their succes-
sors forever, a certain designated lot of ground in Maysville,
upon the trust that they would erect on it a house of worship
for the use of the members of the Methodist Episcopal Church
in the United States of America ; and in further trust and
confidence that they would at all times permit such ministers
belonging to that church, duly licensed, to preach therein.
The court held that the grantor in the deed was not the
donor of a charity, but the vendor of land tor a consideration
paid, and therefore, the estate could never revert, though the
Methodist Episcopal Church should cease to exist; but the
use belongs to the local society worshipping at that place,
unless forfeited by a departure from the conditions of the
deed.
The court further held, in case of a division of the local
society, each claiming the use of the house, their rights must
be decided by the rules of the church, in which they could
find no right, in a separating minority, to claim the use against
the majority maintaining the original organization. They
further held, that the deed secured the use of the pulpit to
such ministers of the Methodist Episcopal Church as should
be designated by the General Conference, or under their
authority, and to none other; and in case of division in the
local society, the branch of the divided church receiving the
minister from the appointing authority recognized by the
society, is to be recognized as the organization entitled to the
use of the pulpit under the deed.
52 Ferraria et al. v. Yasconcellos et al. [Jan. T.
Opinion of the Court.
The division in this church, it appears, was into the Metho-
dist Church " North," and Methodist Church " South," one
portion receiving a preacher from the northern and the other
from the southern organization, and eadi claimed the exclusive
use of the church property in controversy.
The decree was in favor of the Methodist Episcopal Church
South, the court holding, as the church had a right to separate,
so each local church had a right to determine by a majority
to which division it would adhere, and having determined to
adhere to the Methodist Episcopal Church South, the minis-
ters furnished by that organization, and those adhering to that
connection, had the right to the exclusive use of the church
property ; the minority having, by their assent to the vote, and
submitting the question to the decision of the majority,
acknowledged the legitimacy of the mode of determination
by a majority, were estopped to deny the authority of the
tribunal to which they submitted, and having separated from
the majority, they had no right to the use of the property for
any portion of the time for religious purposes.
The case was decided upon the deed, no regard being had,
by the court, to the proviso in the act of 1814, for the court
say, this proviso was not intended to control the operation of
deeds, or affect permanently the rights of beneficiaries in
deeds for church property, or restrict the powers of courts of
equity in ascertaining and enforcing the rights, according to
the true intent of the deeds conferring the rights. The
proviso was intended to prevent the trustees, in cases of schism,
from excluding either party from the church, or from expelling
them by an action at law ; but did not prohibit either party,
being beneficiaries, from an application to the Chancellor, for
the establishment of their right against other claimants under
the deed, which the court is bound to do„
This decision deprived the portion of the church adhering
to the Methodist Episcopal Church North, of any use what-
ever of the building and property, and we cannot but regard
it as a harsh decision. When the Methodist Episcopal Church
of the United States separated into North and South — (a
fearful omen of what has transpired since in the nation
1863.] Fekkakia et al. v. Vasconcellos et al. 53
Opinion of the Court.
itself) — a division of their property was made, and neither
party was robbed by the other. This principle, it seems to
us, should have governed that case, and an equitable partition
had, or a sale ordered, and a division made of the proceeds.
We cannot regard the decision, able and profound as it is, as
binding upon this court.
We believe, with Dr. Breckinridge, Messrs. Barnes, Watson,
Patterson and Tarbet, that whatever may be the ecclesiastical
right of a church, or a portion of a church, to sever its con-
nection with a particular presbytery, with or without its
consent, it does not follow, that the majority in so acting,
become entitled to the property of the church, to the exclusion
of the minority. Their rights still remain, and should be
adjusted on the principles of equity. They had an interest
in the property before the division — they were as much the
beneficiaries under the deed as the majority, and as it is
insisted, the majority had a right to withdraw from the pres-
bytery, so the minority had a right to adhere to it. Neither
act, on the principles of the case cited, worked a forfeiture of
the rights of either, to the church property, because, in
neither case has an illegal act been done. It may with truth
be said, that as the majority did not forfeit its rights to the
property by withdrawing from, so neither did the minority
by adhering to, the presbytery. The congregation were,
before the separation, the beneficiaries under the deed, and
we see no reason why they are not so still. The proceeds of
the property ought, therefore, to be divided between them, in
the proportion which the seceding and adhering members of
that congregation bear to each other in point of numbers.
This will protect the rights of all parties, and is manifestly
equitable and just, and is in accordance with the opinion of
Chief Justice Gibson, in the case relied on, as we understand
it, and in harmony with the views of the distinguished divines
we have specially named. Neither party obtains an advan-
tage over the other, and neither party, in the language of
Dr. Breckinridge, " robs " the other. Justice should be
done to both parties, and the equitable powers of this court,
to that end, should not be invoked in vain. We are well
54 Fekraria et al. v. Yascqnoellos et al. [Jan. T.
Separate opinion by Mr. Chief Justice Caton.
satisfied, this unpleasant controversy should be settled on this
basis. Neither party has the exclusive right to the property
of this church. Justice, good conscience and equity demand
a partition of it, among these contestants.
The fact urged by the counsel for the defendants in error,
that they have contributed, if it be so, the largest part of the
money towards the acquisition of this property, can have no
controlling influence, since, when the donations were made,
they became the property of the church in which all its mem-
bers have an interest. It cannot be claimed now, that those
who paid the most money, have, on that account and for
that reason, the greatest interest in the property.
To carry out these views, the decree of the Circuit Court is
reversed, and the cause remanded to the Morgan Circuit
Court, with instructions that the master in chancery of Morgan
county ascertain, without delay, by competent testimony, the
description and value of this church lot and edifice, and then,
what number of persons composed the Free Portuguese
Church on the 17th of May, 1858, as members thereof, and
also how many of the same adhered to the Sangamon Pres-
bytery, and how many of the same withdrew therefrom.
And the said Circuit Court will order a sale of the lot and
church edifice by the master in chancery, at public auction, at
the door of the said church, after giving four weeks' notice in
some public newspaper printed in Jacksonville, of the time,
place and terms of sale ; the sale to be on a credit of twelve
months, sufficient security to be taken for the purchase-money,
and a deed executed to the purchaser. Either party will be
permitted to bid at the sale. The purchase-money, when
realized, shall be divided between the parties in the propor-
tion herein indicated. Each party will be required to pay
one-half the costs of this suit.
Separate opinion by Mr. Chief Justice Caton :
As a matter of law, as I understand the decisions, the rule
is, that where a church is erected for the use of a particular
denomination, or religious persuasion, a majority of the mem-
bers of the church cannot abandon the tenets and doctrine of
1863.] Ferrakia et al. v. Yasconcellos et ah 55
Separate opinion by Mr. Chief Justice Caton.
the denomination, and retain the right to the use of the
property ; but such secessionists forfeit all right to the prop-
erty, even if but a single member adheres to the original
faith and doctrine of the church. This rule is founded in
reason and justice, and is not departed from in this case.
Church property is rarely paid for by those alone who there
worship, and those who contribute to its purchase or erection
are presumed to do so with reference to a particular form of
worship, or to promote the promulgation or teachings of
particular doctrines or tenets of religion, which, in their
estimation, tend most to the salvation of souls ; and to pervert
the property to another purpose, is an injustice of the same
character as the application of other trust property to pur-
poses other than those designed by the donor.
Hence it is, that those who adhere to the original tenets
and doctrines for the promulgation of which a church has
been erected, are the sole beneficiaries designed by the donors ;
and those who depart from and abandon those tenets and
doctrines, cease to be beneficiaries, and forfeit all claim to the
title and use of such property. These are the principles on
which all these decisions are founded ; and so long as we
keep these principles distinctly in view, we can have no
great difficulty in applying them to the facts of each particu-
lar case, when the facts are once clearly ascertained.
The facts of this case are peculiar, and differ from all of
the cases referred to ; yet the principles above stated are no
more difficult of application than in ordinary cases. Which
of the contestants has incurred a forfeiture of the right and
use of this property by abandoning the tenets and doctrines,
the faith and the organization anciently proposed, when this
church was erected and paid for ? This cannot be said of the
minority, who adhere to the Presbytery of Sangamon, for
they have not changed a hair. They adhere to the ancient
faith and doctrines, and adhere to the connection with the
presbytery, which had been lately formed by the consent of
all, and which they had a right to form without the violation
of any trust or confidence reposed by the donors. Certainly,
then, they had incurred no forfeiture. How is it with the
56 Fekrabia et al. v. Yasconcellos et al.
Separate opinion by Mr. Chief Justice Caton.
others who withdrew from the connection with the presbytery,
who constituted a bare majority ? They, too, did only what
the proof shows they had a right to do. It was no violation
of the trust reposed, for them to withdraw from the ecclesias-
tical control of the superior body, and assume the free and
independent position which this church occupied when the
donations were made and the building erected. In resuming
this old position there was certainly no perversion of the fund
from the design contemplated by the donors. They, then,
have incurred no forfeiture by thus withdrawing from the
presbytery.
In a case thus peculiar in its facts, differing as it does from
all others which we find reported, where neither party has
incurred a forfeiture, we are to apply the rules of equity, and
a sound morality. This can only be done by a division of the
property, where the members of the church have thus become
divided in numbers nearly equal.
We would not be understood that such a division should be
made where one party or the other consisted of a single
member, or but a very few members, for then the minority
might be considered as acting obstinately or perversely ; but
where, as in this case, the numbers are nearly equal, there is
propriety in recognizing the rights of each.
Mr. Justice Walker : I understand that neither of these
opinions conflicts with the previous decisions of this case
when formerly before this court, and therefore concur in the
judgment announced.
Decree reversed, and cause remanded.
OASES
IN THE
SUPKEME COURT
OP
ILLINOIS.
THIED GEAJ^D DIVISION.
APRIL TERM, 1863.
Elijah C. Babcook et al.
v.
Seth Smith et al.
1. Parol Evidence — judgment. A witness being examined on his voir
dire, stated that a certain party had recovered a judgment against him upon
a matter which, it was considered, had relation to his interest in the suit in
which he was called to testify ; and this was taken as competent proof that
such a judgment was obtained.
2. Witness — competency — interest. Trespass against a sheriff and
others, for taking and carrying away goods : defense, that the sheriff and
his co-defendants seized the goods under an attachment against a third
party, who owned the goods, and who had sold them in fraud of the rights
of the attaching creditor, and that the plaintiffs had purchased them from
the fraudulent vendee, with notice of the fraud. The purchaser from the
attachment debtor had obtained a judgment against his vendor, upon his
implied warranty of the title to the goods, and this was held to render the
attachment debtor incompetent as a witness on behalf of the defendants in
the action of trespass, to prove that he sold the goods fraudulently, as his
interest would be in favor of the party calling him.
8 — 31st III.
58 Babcock et al. v. Smith et at. [April T.
Statement of the case.
Writ of Error to the Circuit Court of Warren county ;
the Hon. Aaron Tyler, Judge, presiding.
Elijah C. Babcock and John Babcock, partners, under the
name of E. C. Babcock & Son, commenced an action of tres-
pass in the Circuit Court against Seth Smith, Alexander Gr.
Kirkpatrick, George D. Crandall, and James McCoy, to
recover damages for taking and carrying away certain goods,
wares and merchandise. The defendants set up as a defense,
that the goods, etc., described in the declaration were the
property of Joel E. Ragland and Kobert F. Ragland, part-
ners, under the name of Joel E. Eagland & Bro. ; that the
defendant Smith was sheriff of Warren county, and the other
defendants his assistants ; that the defendant Smith had in his
hands a writ of attachment, issued from the Circuit Court of
Warren county, in favor of Oliver N. Bostwick and others,
partners, under the name of Bostwick, Hussey & Co., against
the said Ragland & Bro., to make the sum of $538.07, and by
virtue thereof the defendant Smith, as sheriff, and the others
aiding him, took the property described in the declaration, as
the property of Ragland & Bro. ; and denied that it belonged
to the plaintiffs.
A jury was empanneled to try the issue.
The plaintiffs having proved the taking and carrying away
of the goods from their possession by the defendants, the
latter introduced evidence in support of their theory of the
defense, which was, that Joel E. Ragland and Robert F. Rag-
land, who were merchants in Monmouth, were largely in debt
to various persons, and, among others, to Bostwick, Hussey
& Co., in something over five hundred dollars ; that being so
indebted, and with the view to hinder and delay their cred-
itors, the Raglan ds sold their entire stock of goods to one
Munger, for a quantity of land in Iowa ; Munger, at the time,
having knowledge of the fraudulent intention of his vendors.
It was further insisted by the defendants, that the plaintiffs,
Babcock & Son, purchased these goods from Munger with
notice of the fraudulent sale to him by the Raglan ds ; and,
therefore, that the goods were properly seized as the property
1863.] Baecock et al. v. Smith et at. 59
Statement of the case. • •
of the Raglands, in the hands of Babcoek & Son, by virtue
of the writ of attachment sued out by Bostwick, Hussey &
Co., against the Raglands.
In support of this proposition, and for the purpose of prov-
ing that the sale from Raglands to Munger was fraudulent, the
defendants called as a witness, Joel E. Ragland, one of the
vendors, and defendant in the attachment, who was sworn on
his voir dire, and testified as follows :
" That he was a member of the firm of J. E. Ragland &
Brother, and the same person who sold the goods to Milton C.
Munger, that had been spoken of by the other witnesses ; that
he had no interest in the event of this suit that he knew of;
that if the defendants succeeded, the goods would pay his debt
— if not, he would be liable to pay Bostwick, Hussey & Co. ;
under these circumstances he supposed he would be liable and
interested in the event of the suit ; that he had never expressly
warranted the goods to Munger."
On his cross-examination on his voir dire, the witness stated
that Munger claimed that he was liable to him on an implied
warranty of the goods. That he had so claimed at Chicago,
and had obtained judgment against him at Chicago, on such
implied warranty, and consequently could not see that he had
any interest in the suit going either way.
The plaintiffs objected to the examination of Joel E. Rag-
land as a witness, on the ground of interest, but the court
overruled the objection and allowed him to testify ; to which
decision the plaintiffs excepted.
The witness, Joel E. Ragland, was then sworn in chief and
testified as to his pecuniary embarrassment, the sale to Munger,
the object of said sale, and the circumstances under which the
same was made.
The trial resulted in a verdict for the defendants below ; and
a judgment being rendered accordingly, the plaintiff's sued out
this writ of error.
Two questions are presented — First, whether it was compe-
tent to prove by parol that Munger had obtained a judgment
against Joel E. Ragland ; and second, whether the latter had
60 Babcock et al. v. Smith et al. [April T.
Brief for the plaintiffs in error.
not such a disqualifying interest in the result of this suit, ag
to render him incompetent as a witness.
Mr. W. C. Gotjdy, for the plaintiffs in error.
Joel E. Ragland was not a competent witness for the de-
fendants, because he was directly interested in the immediate
result of the suit in their favor, for the purpose of proving
the goods subject to the attachment. Bland v. Ansley, 5 Bos.
& Pul. 331 ; Bailey v. Foster, 9 Pick. 189.
He was a competent witness for the plaintiffs, but not for
the defendants. Gardiner v. Tubbs, 21 Wend. 170 ; Sterling
v. Ripley, 3 Chand. (Wis.) 170 ; Bailey v. Foster, 9 Pick.
139 ; Smead v. Williamson, 16 B. Mon. 464.
The interest of the witness, when called to prove the fraud
and avoid the sale, not being balanced, he is incompetent.
Bea v. Smith, 19 Wend. 293.
The rule is also well settled that the interest must be equal
on both sides, and if more uncertain or more remote on one
side than the other, he is then incompetent for the party where
his interest is most direct. In this case, the interest of Rag-
land was direct and immediate in favor of the defendants ;
but on the other side, he was not liable, in any event, to the
plaintiffs, and not to Mimger, unless he was first compelled to
pay the plaintiffs. At least two suits would be required to
reach the witness, and he had the benefit of all the interven-
ing contingencies. The interest was not equal, and therefore,
he was incompetent. Radburn v. Morris, 1 Mo. & Payne,
653 ; Clark v. Lucas, 1 Carr. & Payne, 156 ; Phillips v.
Bridge, 11 Mass. 242 ; Beach v. Swift, 2 Conn. 269.
The witness being interested directly and immediately in
having the goods used to satisfy the judgment of Bostwick,
Hussey & Co., {Bland v. Ansley, 5 Bos. & Pul. 331; Bailey
v. Foster, 9 Pick. 139 ; Clifton v. Bogardus, 1 Scam. 32 ;
Warner v. Carlton, 22 111. 422 ;) and there being no equal
interest, nor any interest, to oppose it, he was incompetent,
and the Circurt Court erred in admitting him to testify.
1863.] Babcock et al. v. Smith et al. 63
Opinion of the Court.
A. G. KiEKPATRicEyEsq., for the defendant in error.
The testimony of Joel E. Kagland, on his voir dire, on cross-
examination, shows that Munger claimed that the witness was
liable to him, on an implied warranty of the title to the goods,
and had in fact already recovered on such warranty in a case
in Chicago, and therefore could not see how he had any in-
terest in the case going either way. Is this not the strongest
evidence in the world that the witness had no interest either
way?
The court has laid down the true rule, as follows :
" If a witness has sold with a warranty, and a warranty of
title is always implied in sales of chattels, and a trial results
in favor of its liability to the execution, he thereby becomes
liable to the vendee for a breach of warranty for the price ;
whilst if the vendee recovers the property, his liability to
pay the execution remains unimpaired. In either event, his
liability is the same, and his interest is balanced."
Warner v. Carlton, 22 111. 423, and authority there cited ;
together with the following : Much/more v. Jeffers, 25 111. 199.
Mr. Chief Justice Caton delivered the opinion of the
Court.
The witness, Ragland, stated on his voir dire, that Munger,
to whom he sold the goods, had obtained judgment against
him in Chicago on the implied warranty of title. The plain-
tiffs' counsel thinks this is not sufficient proof of that fact.
If we agreed with him in this, wTe should probably have to
affirm this judgment ; but we think this was competent proof
that such a judgment was obtained, and it is this which
renders the witness interested in favor of the party calling
him, and, consequently, incompetent. When Munger obtained
a judgment against him on the implied warranty of the title
to the goods, then his liability was fixed, and could not be
affected by the determination of this or any other cause. It
then became his interest to prove that his sale of the goods to
Munger was fraudulent, and thus procure the goods to be
62 Smyth et al. v. Harvie et al. [April 1
Syllabus.
applied in satisfaction of the judgment against him. Had
not Hunger already obtained a judgment against him for the
failure of the title to the goods, there would then be his
desire to make that title good, and thus save himself from
liability on that implied warranty, to countervail his desire
to have the goods sold to pay this judgment against him ;
but now, as all question on that implied warranty is forever
settled, there is nothing to balance his interest in favor of the
party calling him. The court erred in permitting him to
testify.
The judgment is reversed, and the cause remanded.
Judgment reversed.
Bernhard Smyth et al.
v.
Andrew Harvie, and Murray F. Tuley.
1. Attorneys at law — their authority and duty. An attorney's duty
does not cease upon the recovery of a judgment on a claim which is put in
his hands for collection ; he should collect the money after the judgment ig
recovered, unless it is otherwise agreed between him and his client.
2. And where, in the process of collecting, land is sold under an execu-
tion which issued upon such judgment, it is the duty of the attorney to re-
ceive the money which may be paid to the sheriff in redemption from such
sale.
3. The collection of money is a part of the professional business of an at-
torney at law.
4. Attorneys — partners — dissolution — liability. So, where a claim
was placed in the hands of two attorneys, who were partners in the prac-
tice of law, for collection, a judgment was obtained, land of the debtor sold
under execution, and redemption from the sale by paying the money to the
sheriff, who paid it over to one of the attorneys. Prior to the redemption,
the law co-partnership between the attorneys was dissolved, yet both of the
partners were held liable to the client for the money thus received by one
of them after the dissolution.
5. Where a party retains two attorneys who were partners, he is entitled
to the services of both until the business in which they are retained, shall
be completed, notwithstanding a dissolution of their co-partnership in
the meantime.
1863.] Smyth et al. v. Harvie et al. 63
Statement of the case.
Writ of Error to the Superior Court of Chicago; the
Hon. Grant Goodrich, Judge, presiding.
This was an action of assumpsit instituted in the court
below by Bernhard Smyth, Felix E. O'Eourke and William A.
Herring, who resided in the city of New York, against
Andrew Harvie and Murray F. Tuley, to recover a certain
sum of money which the defendants, as attorneys at law, had
collected for the plaintiffs, and failed to pay over.
It appears that the plaintiffs below had retained Harvie
& Tuley, who were, at the time, copartners in the practice
of law, in the city of Chicago, to collect a debt which they
had against one Charles McDonnell. The attorneys, not being
able to collect the money otherwise, instituted suit against
McDonnell, and recovered a judgment for the amount of
the debt. A part of the money was collected upon execution,
and paid over by the attorneys to their clients. Finally, for
the residue, they procured a levy to be made upon the real
estate of McDonnell, a sale was had, and the attorneys bid
in the land, and received a certificate of purchase from the
sheriff, in the names of their clients. Before the expiration
of the time of redemption, McDonnell redeemed the land
from such sale, by paying the money into the hands of the
sheriff. Soon after the redemption was made, Harvie pre-
sented the certificate of purchase to the sheriff, received the
money paid upon the redemption, and receipted therefor in
the name of the firm of Harvie & Tuley.
Prior to the receipt of this redemption money by Harvie,
the law firm of Harvie & Tuley was dissolved ; Tuley going
out, and leaving all papers and business with Harvie.
Now Tuley insists, that inasmuch as the copartnership
between himself and Harvie was dissolved before Harvie
received this money, Harvie alone is responsible for it to their
clients ; and such was the ruling in the court below, in which
a judgment was rendered accordingly.
The plaintiffs below sued out this writ of error, and ques-
tion the correctness of the ruling of the court below in regard
to Tuley's liability.
64 Smyth et al. v. Harvie et al. [April T.
Briefs of Counsel.
Messrs. Hurd & Booth, for the plaintiffs in error, relied
upon the following points and authorities.
1. " The contract of retainer was a joint and continuing
contract, and neither of the parties could be released from its
obligations or responsibilities which they had thereby assumed,
either by a dissolution of the firm, or by any other act or
agreement between themselves. A dissolution does not affect
engagements already made, at least so far as their clients are
cencerned." Walker v. Goodrich, 16 111. 341.
The undertaking of a firm of attorneys to collect, is like
that of a firm of common carriers to transport goods, etc.
Poole v. Gist, 4 McCord, 259.
Messrs. Barker & Tuley, for the defendants in error.
1. The original retainer as attorneys gave Harvie no
authority to receive the redemption money.
Authority of an attorney is twofold — expressed in the
warrant, or implied by law. Co. Litt. 52.
The rule is, that the power of an attorney, under his general
warrant, expires when judgment is rendered, for thereby,
says Lord Coke, plaeitum terminatur. 2 Inst. 378.
The defendant is out of court by the judgment, for the
warrant of attorney is " quousque plaeitum terminatur" the
defendant's placitum is determined by the judgment. 1
Moore & Payne, 513, 514, (17 E. C. L. 193); 4 Bingham, S.
C. 578 ; 1 Hill, 659. 660.
Previous to judgment, there must be an order of substitu-
tion to change attorneys, (1 Wendell, 293) ; but after judg-
ment, plaintiff may have his execution issued by any attorney
without substitution. 5 Cow. 446.
The general rule is, that power and authority of attorney,
by virtue of his retainer, ceases with final judgment. 8 Johns.
361 ; 1 Hill, 656.
The following cases should be decisive of this one :
An attorney cannot, under his general authority, purchase
land under execution in the cause for the benefit of his client.
11 Johns. 464; 14 Yesey, Jr. 517.
1863.] Smyth et al. v. Haevte et al. 65
Brief for the defendants in error.
He must have express authority so to do. 4 Cowen, 738.
Attorney cannot receive securities to collect and apply on
judgment ; cannot receive bond in discharge of judgment.
13 Mass. 320 ; 5 Rand. 639.
By stipulation, attorney agreed to receive (did receive) deed
for land in satisfaction of judgment ; held* he had no power.
14 Serg. & R. 307.
An attorney may receive money upon execution, but is not
bound to do so. 4 McCord, 259.
After judgment, the attorney can only issue execution ;
cannot enter satisfaction without payment ; release the
damages ; discharge the defendant from execution without
payment; can take nothing but money in satisfaction, and
the assignment by creditor cuts off all control of attorney
over judgment. 1 Desau. 469 ; 27 111. 151 ; 16 111. 272 ; 10
Ala. 231 ; 11 Adol. & Ellis, 829, S. C. ; 2 Exchequer, 489 ;
3 Barn. & Adol. 366.
2. In the case of purchase of land, under an execution
sale, the judgment is actually satisfied. There is no longer
any judgment for attorneys to control.
"An agent employed to make, negotiate or conclude a
contract, is not, as of course, to be treated as having an inci-
dental authority to receive payments which may become due
under such contract." Story on Agency, sec. 98, and cases
cited.
This certificate of redemption was a negotiable instrument ;
and, as to negotiable instruments, it is held that payment can
only be made to the party in whom the legal title stands.
In other words, if note payable to A., that A. himself must
appear and claim payment. 8 Barn. & C. 622 ; 3 Man. & R.
58; 3 Younge& C. 220.
Harvie did not have the legal title to this certificate, (it was
not indorsed,) and he could not receive the money except he
was specially authorized. Edwards on Bills, p. 537.
Messrs. Hued & Booth, for the plaintiffs in error, in reply,
It is conceded that there is a class of cases in which the
9— 31st III.
66 Smyth et al. v. Haevie et al. [April T,
Opinion of the Court.
courts have held that the authority of an attorney over a suit,
ends with the judgment and execution.
The following authorities take a more liberal view of the
powers and duties of attorneys, and fully sustain the position
we assume, that both their authority and duty extend beyond
the execution, if further steps are required to collect the debt.
Cranberry v. The Commonwealth, 1 Dana, 272 ; Nolan v.
Jackson, 16 111. 272 ; Mc Carrier v. Neely, 1 Greene (Iowa)
E. 360 ; 1 Call, 127 ; Dearborn v. Dearborn, 15 Mass. 316 ;
Stewart v. Biddecom, 2 Cornstock, 106 ; Crocker v. Hutchin-
son, 1 Vermont, 73 ; Hopkins v. Willard, 14 Vermont, 474 ;
Bracket v. Norton, 4 Conn. 517.
Mr. Justice Walker delivered the opinion of the Court.
The plaintiffs in error retained defendants in error to insti-
tute a suit against McDonnell. A judgment was recovered,
an execution was issued, real estate was sold, and purchased
for four hundred dollars, and a certificate of purchase was
taken in the names of plaintiffs in error. Afterwards McDon-
nell redeemed the land from this sale, paying into the hands
of the sheriff, for this purpose, four hundred and forty dollars.
On the 19th day of February, 1857, defendant Harvie took
the certificate of purchase to the sheriff, obtained the money,
and receipted for it in the name of the firm. It seems, that
this money was never paid to plaintiffs in error, and this
action was brought for its recovery, together with one hundred
and twenty-eight dollars and fifty-four cents received at a
different time.
Defendant Tuley relies upon a dissolution of the partnership
between himself and Harvie, previous to the receipt of this
redemption money, as a defense to that portion of plaintiffs'
claim. This was allowed by the court below, in which a judg-
ment was rendered for forty -four dollars and twenty-five
cents, the balance of the $128.54, and interest, after deducting
defendants' fee for services in collecting the money.
"Whilst by the rules of the ancient common law, it was no
part of an attorney's duty to receive money on a judgment,
yet in more modern times attorneys have become collecting
1863.] Smyth et al. v. Harvie et at. 67
Opinion of the Court.
agents, as well as lawyers. By uniform custom and practice>
attorneys engage in, and attend to the collection of money as
a part of their professional duty. Such is inseparable from the
practice at the present day. It is not reasonable to suppose,
that either party imagined, at the time of this retainer, that
the duty of the defendants ceased when they obtained the
judgment on the plaintiffs' claim. And the sum charged for
professional services, no doubt was designed to cover the
collection of the money, as well as the recovery of the judg-
ment. In fact the evidence of the value of their services,
refers to all they did in the case. They thus recognize their
undertaking as collecting agents.
Then, if their partnership embraced the business of collect-
ing money, as well as the practice of the law in other
branches of the profession, it became a part of their duty to
collect the money after judgment was recovered, unless other-
wise agreed. If this was a partnership duty, it continued
with each member, after the dissolution of the firm. Plain-
tiffs gave credit to the firm as it was then constituted, and
they did not release themselves from their obligation, by its
dissolution. For aught we know, the fact that Tuley was a
partner, may have been the inducement to confide the business
to the care of the firm.
Even if a dissolution of the partnership could have released
the members from liability for a failure to complete the
business, it could only have been after notice of the dissolu-
tion. In the absence of such notice, plaintiffs had no option
in determining whether they would continue the cause in the
hands of the member who took charge of the business of the
firm, or would place it in the hands of another attorney. It
cannot be, that their business can be transferred to others
without their consent, so as to escape responsibility. They
did not trust either member of the firm separately, but it was
to both that the business was entrusted, and they have the
right to look to both for its faithful performance. The court
below erred in finding, that Tuley was released from liability
by the dissolution of the partnership, and the judgment must
be reversed, and the cause remanded.
Judgment reversed.
b8 Whiteside County v. Bukchell el al. [April T.
Syllabus.
The Board of Supervisors of Whiteside County,
State of Illinois,
v.
KOBERT C. BURCHELL, State's ATTORNEY OF THE
Twenty-Second Judicial Circuit of the State
of Illinois, and Peter Bressler.
1. Parties in chancery— State's attorney. A State's attorney, as such,
has no interest in the application of the proceeds of the sales of swamp
lands in the counties comprising his circuit, and is not a proper party com-
plainant, in a suit in chancery, instituted for the purpose of compelling a
county to appropriate such proceeds to the reclamation of the lands.
2. Same — misjoinder. But if it were the duty of the State's attorney to
originate a proceeding for such a purpose, it would be improper to join
with him, as complainant, one who seeks relief personal to himself, as a
purchaser of swamp lands from the county, his interest being in no way
identified with the general interests represented by the State's attorney.
3. Multifariousness — what constitutes. And where the State's attor-
ney thus joins with another person in exhibiting their bill, the former seek-
ing to compel the county to execute certain alleged trusts devolving upon
it by the conveyance of the swamp lands by the State to the county, while
his co-complainant bases his claim to relief upon a contract, and purchase
of these lands of the county, which he alleges should be discharged in
labor, the bill is multifarious.
4. General demurrer — multifariousness. Multifariousness may be
taken advantage of upon general demurrer.
5. Swamp lands— character of the grant to the State. By the grant of swamp
and overflowed lands to the State of Illinois, under the provisions of the
act of Congress, of September 28, 1850, to enable the State of Arkansas and
other States to reclaim the " swamp lands " within their limits, a fee simple
estate passed, unconditionally. The State became the absolute owner of the
lands, with power to dispose of them in such manner, and for such purpo-
ses, as to the legislature might seem most expedient.
6. Same — policy of the State. It was the intention of the General As-
sembly, under the various acts on the subject, to grant to the several coun-
ties in the State, the swamp and overflowed lands within their limits, re-
spectively, and to remit to such counties the exclusive control over these
lands, and over their proceeds.
7. Same — rights of purchasers — obligations of counties. So, where a
party purchased swamp lands from a county in 1856, and executed his notes
for the absolute payment of the purchase-money, he has no remedy to
1863.] Whiteside County v. Bukchell et al. 69
Briefs of Counsel.
compel the county to appropriate the proceeds of the sales of such lands to
their reclamation, as was contemplated by the legislation on the subject,
in force at the time of his purchase ; but his rights in that regard are to
be determined by the policy subsequently adopted by the legislature, which
placed the whole subject of the control of these lands, and the appropria-
tion of their proceeds, in the hands of the several counties, and released
them from all the liabilities and obligations theretofore imposed upon
them respecting them.
8. And where such purchaser claimed the right to pay the purchase-
money for which he had given his notes, in labor to be bestowed in the
reclamation of the lands, it was held, that he could in no way have insisted
upon such right, except by being the lowest bidder at the lettings of the
work under the act of June 22, 1852, and that under the subsequent legis-
lation the county was under no obligation to carry out the system of
reclamation of the lands as contemplated by that act.
9. Power of courts over the legislatue. Even if the grant of the
swamp lands to the State had been made upon the trust that the proceeds
of the lands should be expended in reclaiming them, such a trust would
have been of municipal and not judicial concern, over which the power of
the State would have been plenary and exclusive. The courts have no
power to compel the legislature to execute such a trust.
Writ of Error to the Circuit Court of Whiteside county ;
the Hon. John V . Eustace, Judge, presiding.
This was a bill in chancery exhibited in the Circuit Court,
on the second day of May, 1860, by Kobert C. Burchell,
State's attorney of the twenty-second judicial circuit, and
Peter Bressler, against the Board of Supervisors of Whiteside
county. The decree in the court below was rendered in favor
of the complainants, upon a demurrer to the bill, the objects
and scope of which are sufficiently set forth in the opinion oi
the court.
The Board of Supervisors bring the cause to this court upon
writ of error.
Mr. F. Sackett, for the plaintiffs in error.
The rights and interests of the complainants are entirely
distinct, Burchell- appearing on behalf of the People, and
Bressler appearing in his own right. There is a misjoinder
of parties complainant; and the bill is multifarious in setting
forth distinct grounds of complaint, and asking a different
character of relief on behalf of the several complainants.
70 Whiteside County v. Burchell et al. [April T,
Briefs of Counsel.
Burchell assumes a position in opposition to the county,
which is inconsistent with his duty as State's attorney ; it is
his duty to defend all actions brought against the counties
within his circuit. Moreover, the State's attorney cannot
commence suits in his own name, where the interests of the
State are involved. Rev. Stat. 1845, ch. 12, sec. 4.
All suits in which the State shall be a party plaintiff or
complainant, are required to be instituted and prosecuted in
the name of the People of the State. Rev. Stat. 1 845, ch. 29,
sees. 51, 52.
Each of these objections may be taken upon general
demurrer. 1 Daniell Ch. Prac. 617, 395; Story's Eq. PI.,
sees. 47, 279, 509.
The swamp and overflowed lands were granted to the State
by the act of Congress, of September 28, 1850, and the trust
thereby reposed by the United States in the State of Illinois
was a personal trust in the public faith of the State, and not
a property trust, and is exclusively under the control of the
legislature of the State. Dunklin County v. The District
County Court of Dunklin County, 23 Mo. 449. The same
general principle is sustained in Cooper v. Roberts, 18 How.
173, and in Long v. Brown, 4 Ala. 622.
The court could not, by decree, or otherwise, direct the
legislation of the State on the subject.
The entire action of the legislature on this subject, shows
that it was the intention of the General Assembly, as a
matter of public policy, to leave the whole subject of the
management, sale and disposition of the proceeds of the sales
of swamp lands exclusively to the people of the different
counties, in which they lie, through their respective County
Courts, or boards of supervisors.
Act of February, 1855, (Sess. Acts, 1855, p. 48) ; act of
10th February, 1857, (Sess. Acts, 1857, p. 41) ; act of Feb.
9, 1859, (Sess. Acts, 1859, p. 202) ; act of Feb. 24, 1859,
(Sess. Acts, 1859, p. 189) ; and finally, the act of 14th Feb-
ruary, 1859, by which the whole subject of the disposition of
these lands was placed under the exclusive control of the
several counties, and they were released from all liabilities and
1863.] Whitkside County v. Bukchell et al. 71
Briefs of Counsel.
obligations imposed by former acts, requiring them to drain
the lands, or in reference to the disposition of the proceeds of
the sales of the lands.
Although Bressler purchased from the county at the time
the acts were in force which provided for the reclamation of
these lands, yet the legislature had the power, by subsequent
legislation, to abandon that policy, and to divert the proceeds
of the sales to any other purpose they might deem to be
proper.
The rights which Bressler acquired in that regard were
not such as are within the protection of the provision of the
constitution, prohibiting the legislature from passing any law
impairing the validity of contracts. 2 Parsons on Con., p,
511 ; Butler v. Pennsylvania, 10 How. 402 ; Satterlee v.
Mattheson, 2 Peters R. 380 ; 1 Am. Railway Cases, p. 1.
In reference to the privilege which Bressler claims, of work-
ing out the amount of the purchase-money of the lands, in
reclaiming them, it is not pretended, on his part, that any
special contract was entered into by the county, at the time
of the sale, in reference to the purchase-money being paid in
that way ; and under the act of June 22, 1852, he could only
have such right in the event of his becoming a contractor
under the lettings which might afterwards be made by the
county in carrying out the policy of reclaiming the lands,
which was subsequently abandoned.
Messrs. Johnson & Teller, for the defendants in error, did
not propose to discuss the question whether the State took
these lands under the act of Congress, free from all incum-
brance, and by an absolute title, or in trust for a certain
object, as it was not necessary to a proper understanding of
the case ; but insisted that the language of that act, and the
case in 23 Missouri R. 449, were conclusive in favor of the
grant as a trust.
But if this were not so, and the grant to the State were
absolute, yet it was competent for the General Assembly to
make the county a trustee for the disposal of the lands, and
the appropriation of the proceeds ; and this was done by the
72 Whiteside County v. Buechell et al. [April T.
Opinion of the Court.
act of 22nd June, 1852. For the definition of a trust, see
2 Lill. Abr. 624.
The trust having been thus created, and the county having
taken upon itself to execute it in part, the court had the power
to compel the county to execute the trust in all respects.
But it is said, the act of February 14th, 1859, gives to the
board full power to dispose of the lands and the moneys aris-
ing from the sale thereof, as the board shall see fit. Yet it is
clear that so far as that act relates to contracts for the sale of
said lands made before its passage, it is in violation of Sec.
17, Art. 13, of the Constitution of the State ; and as courts
are bound to construe the law so that it may be constitutional
and valid, when they will admit of such construction, the law
in question must be held to apply only to contracts made
after its passage.
There is no misjoinder of parties complainant. " All per-
sons who are interested in the object of the suit, ought to be
made parties to it." Story's Eq. PL, sees. 76, 77, and notes.
The people of the county had an interest in the object of this
suit, growing out of the fact that the draining of these
lands would have been beneficial to the health of the com-
munity.
Burchell, as State's attorney, stands as the representative
of the people, and it was his right and duty to commence and
prosecute this suit for the people ; and as Bressler's rights
were different from those of the people at large, he was a
necessary party.
Mr. Justice Breese delivered the opinion of the Court:
The questions upon this record arise on a demurrer to a bill
in chancery, predicated on an alleged improper joinder of
complainants, and upon the merits of the bill itself.
It is insisted by the plaintiffs in error, that the State's
attorney has no interest in common with his co-complainant,
Bressler, in the subject-matter of the bill itself, nor has he any
authority to institute such suit, in virtue of his official position.
It is further urged, that the rights and interests of the com-
1863.] Whiteside County v. Buechell et al. 73
Opinion of the Court.
plainants, as disclosed by the bill, rest upon dissimilar foun-
dations, that the relief sought bj the one, has no homo-
geneity with that sought by the other complainant, and
therefore the demurrer should have been sustained.
The complainants insist, as the object of the bill was to
compel the defendants to expend the money, received on the
sale of the swamp lands within the county, in draining and
reclaiming them, all the people of the county have an interest
in that object ; and as the State's attorney stands as the repre-
sentative of the people of the county, it was both his right
and duty to commence and prosecute this suit, and he was not
only a proper, but a necessary party to the bill.
We have always understood, that the duties of State's
attorney were of special and well defined character. They
are, in brief, to commence and prosecute all actions, writs,
process, indictments, and prosecutions, civil and criminal, in
which the people of the State, or any county within his
judicial district, may be concerned, to defend actions brought
in his circuit against the auditor of public accounts, or against
any of the counties therein, and to prosecute all forfeited
recognizances and all suits and actions for the recovery of
debts, revenues, etc., accruing to the people of the State, or
any county within his circuit, and to give his opinion, when
requested, to any County Court or justice of the peace in his
circuit, upon any question of law relating to any criminal or
other matters in which the people or the county is concerned.
Scates' Comp. 674.
There does not seem to be any power vested in this officer,
of his own mere motion, to originate any prosecution, civil or
criminal, in his own name, or to occupy a hostile attitude to a
county within his circuit, as he here appears to do. He is
the instrument of the law to commence and prosecute suits in
all cases in which he may be instructed by the proper author-
ities, in the name of the People of the State, or of a county,
and for their use. As State's attorney, he has no more inter-
est in the application of the proceeds of the sale of the swamp
lands lying in a particular county of his circuit, than the
sheriif or clerk has. Nor is he more to be regarded as
10 — 31st III.
74 Whiteside County v. Burchell et at. [April T
Opinion of the Court.
the representative of the people of the county than either of
those officers. They are all officers of the law, to act when
properly called upon, and then in a proper manner. He
appears out of his sphere in contending against the county,
whom he should represent.
But admitting it was the duty of the State's attorney to
originate a proceeding for the purposes contemplated, it may
be asked, in whose name should it be, and why join another
party as complainant, whose interests are wholly personal to
himself, and in no way identified with those represented by
the State's attorney ? We can perceive no reason for the
joinder of these parties. It was an improper joinder, and the
demurrer should have been sustained on that ground. The
bill is multifarious also, as several complainants join in a bill
demanding distinct matters against the same defendants.
Here the State's attorney bases his claim to relief under and
in virtue of certain alleged trusts devolving on the county by
the conveyance of the lands by the State to the county, whilst
his co-complainant bases his claim upon a contract and pur-
chase of a portion of these lands of the county which he alleges
should be discharged in labor. Whilst the State's attorney
prays that the county should be enjoined from appropriating
any of the proceeds of their lands to the school fund but to
their drainage, his co-complainant prays that the county may
be enjoined from collecting the notes executed for the purchase-
money, and that he be allowed to discharge them in labor in
making drains and reclaiming the land. This multifariousness
can be taken advantage of by general demurrer. 1 Daniell
Ch. Prac, p. 395.
Now as to the merits of the bill. Its object seems to be to
compel the county of Whiteside to execute, specifically, a
trust supposed to have devolved upon it, by reason of the
surrender to it, by the State, of the swamp and overflowed
lands lying within it, which were granted to the State by the
act of Congress of Sept. 28, 1850. This is the ground of the
claim set up by the State's attorney, whilst his co-complainant
seeks to compel the county to enforce the- act of the General
Assembly of June 22, 1852, in all its parts, so that he may
1863.] Whiteside County v. Bxjechell et al. 75
Opinion of the Court.
be enabled to pay for that portion of those lands which he has
purchased, and for which he has executed his notes and mort-
gage, in labor to be expended by him in draining and reclaim-
ing the lands, and for this he has obtained a decree.
An inquiry into the legislation of Congress and of our
General Assembly on the subject of these lands, will show,
we think, satisfactorily, that there is no ground or reasonable
pretense whatever for the claims set up.
On the 28th of September, 1850, Congress passed an act to
enable the State of Arkansas and other States to reclaim the
" swamp lands " within their limits. The first section of the
act is as follows :
That to enable the State of Arkansas to construct the neces-
sary levees and drains to reclaim the swamp and overflowed
lands therein, the whole of those swamp and overflowed lands
made unfit thereby for cultivation, which shall remain unsold
at the passage of this act, shall be and the same are hereby
granted to said State.
The second section provides that the Secretary of the Interior
shall make out accurate lists and plats of these lands, and
transmit the same to the Governor of that State, and, at his
request, shall issue a patent therefor, and on that patent the
fee simple to those lands shall vest in the State of Arkansas,
subject to the disposal of the legislature of that State. Pro-
vided, however, that the proceeds of said lands, whether from
sale or by direct appropriation in kind, shall be applied,
exclusively, as far as necessary, to the purpose of reclaiming
said lands by means of drains and levees. The third section
provides that if the greater part of all legal subdivisions of
such lands shall be wet and unfit for cultivation, the whole
subdivision shall be included in the list.
The fourth section provides that the provisions of the act
shall extend to, and their benefits be conferred upon, each of
the other States of the Union in which such swamp and over-
flowed lands may be situated. Laws U. S., vol. 9, p. 520 ;
Scates' Comp. 1146.
By an act passed by the General Assembly of this State
approved June 22, 1852, all the swamp and overflowed lands
76 Whiteside County v. Eubohell et al. [April T.
Opinion of the Court.
were granted to the counties respectively, in which the same
were situated, for the purpose of constructing the necessary
levees and drains to reclaim them, and the balance of the lands,
if any remained after they were reclaimed, were distributed in
each county equally among the townships thereof, for the pur-
poses of education, or in the construction of roads and bridges,
or to such other purposes as might be deemed expedient by the
courts or county judge, etc. An abstract of the lands was to
be furnished by the auditor to the several counties, to be
recorded in a book to be provided for that purpose by the
county clerk, and filed among the records of his office. Pro-
vision is then made for a sale of the lands, and the mode
thereof prescribed. The fourth section provides that the terms
of selling said lands shall be to the highest bidder for cash,
the amount of which, however, may be discharged by the
purchaser in labor, to be performed according to the terms
and manner hereinafter specified.
It is further provided, that the drainable lands shall be
divided into sections, and when sufficient lands are sold to
complete a section, it shall be put under contract. Section
fourteen provides that the County Court shall cause the work
to be done on the sections to be let out at public sale to the
lowest bidder, who shall give bond (Sec. 15) conditioned for
the faithful performance of the work, etc. Section sixteen
provides that the County Court shall lay off the divisions in
such manner as will enable the purchasers of the land to pay
for the same in necessary work ; and if said purchasers shall
be the lowest bidders at the lettings, the land so purchased
shall be paid for in work ; but if any other responsible per-
sons shall be lower bidders, it shall be struck off to them, and
the purchasers shall be forthwith required to pay for their
lands purchased, in cash or on credit, by giving mortgage and
good security for the purchase-money, at the discretion of the
drainage commissioners. Section seventeen provides that no
more lands shall be sold than may be necessary to complete
the reclaiming and drainage ; and if there be a residue, it
shall be divided equally among the several townships of the
county, and constitute a part of the school fund, or the
1863.] "Whiteside County v. Buechell et al. 77
Opinion of the Court.
remainder may be applied in the construction of roads,
bridges or other works of internal improvement within the
limits of the county. Scates' Comp. 1148 to 1154.
By an act passed March 4, 1854, to amend the act of June
22, 1852, it is provided by the twelfth section, that all the
parts of the acts to which this is an amendment, which
appear to grant the swamp and overflowed lands to the town-
ships in the several counties, and which authorize the county
judges to execute deeds, and all other parts of said acts which
are inconsistent with the provisions of this act, are repealed^
and all the swamp and overflowed lands granted to this State
by the act of Congress, are granted to and vested in the
several counties in which they are situated. Scates' Comp.
1160.
At the same session of the legislature, the swamp lands
lying in the county of Kankakee, were granted to that county
without any conditions or restrictions. At the next session,
on the 15th of February, 1855, an act was passed diverting
the proceeds of these lands from drainage and levees, to the
school fund of the county, and Adams county was authorized
to do as she pleased with the proceeds of these unsold lands.
At the session of 1857, the funds arising from the sale of these
lands in the counties of Green and Massac, were diverted from
drainage and levees, and ordered to be paid over to the coun-
ties respectively, to be used in their discretion ; and the same
legislation was adopted for Brown county.
At the session of 1859, a general act was passed, entitled
" An act for the sale of swamp lands," the third section of
which provides, that the proceeds arising from any sale or
sales, shall be subject to the order of the county judge, for
such purposes as the County Court may direct. Laws of
1859, page 201.
At the same session an act was passed, authorizing the
board of supervisors of Whiteside county to apportion to each
of the townships of that county, the school fund which
accrued on the sale of certain swamp and overflowed lands
therein, in such manner as the board of supervisors might
deem expedient. Id. 189.
78 Whiteside County v. Burchell et al. [April T.
Opinion of the Court.
This is the substance of the legislation of this State in
relation to the swamp lands. By the grant of those lands to
the State, a fee simple estate passed, clogged by no condition.
The State became the absolute owner of the lands, with
power to dispose of them in such manner, and for such pur-
poses, as to the State might seem most expedient. The lan-
guage of the act is, in the first section, "shall be, and the
same are hereby granted to the State." This is a full and
perfect grant of an indefeasible estate. In the next section,
a patent, to evidence the title, is required to be issued to the
State, ;' and on that patent the fee simple to these lands shall
vest in the State, subject to the disposal of the legislature of
the State." Language cannot be used, to express more
clearly, and in more comprehensive terms, the intention of
the granting power as to these lands. They are granted
unconditionally to the State, to be at the uncontrolled disposal
of its legislature.
The proviso does not limit or qualify the power of the legis-
lature over them, and their proceeds, in any manner. It is
at the utmost, but the expression of a wish or a desire on the
part of Congress, that the proceeds of their sale should be
expended in levees and drains, with a view to their redemp-
tion. It is not a condition of the grant, that they shall be so
expended, for a discretion is left with the legislature to expend
them u as far as necessary." From the act itself, no infer-
ence can be drawn that it was the desire of Congress to
resume the grant, if the lands were not appropriated to their
drainage.
The grant was a political measure, in which the States,
having vast bodies of swamp and overflowed lands within
their borders, unfit for cultivation, productive of disease, and
yielding no revenues to the State, had a deep and important
interest, whilst to the nation at large, the interest was compara-
tively trifling. Congress, in view of these facts, said to these
States, these lands are of no use to the nation ; take them ;
we make to you a perfect title to them; drain them and
reclaim them if you can ; we commit them, and the whole sub-
ject, to your legislatures — adopt the policy we recommend.
1863.] Whiteside County v. Bukchell et al. 79
Opinion of the Court.
but take the lands. But if the grant was made upon the trust
that the proceeds of the lands should be expended in reclaim-
ing them, where does the power reside to compel the legis-
lature to execute the trust specifically % If it is a trust, it is
of municipal and not judicial concern, over which the power
of the State is plenary and exclusive. The principle, we
think, is the same as that established by the Supreme Court
of the United States, in the case of Cooper v. jRoherts, 18
How. 173, in relation to the sale of the school sections. In
that case the court said, athe grant of those lands was to the
State directly, without limitation of its power, though there
is a sacred obligation imposed on its public faith. We think it
was competent to Michigan to sell the school reservations
without the consent of Congress." In this case, the sale was
not for school purposes, but the proceeds went into the general
fund. We can see no difference in the principle of that case,
and of this. Here the grant is to the State directly of these
lands, without any limitation of its power, and no application
to Congress, or any other authority, is necessary to direct the
appropriation of their proceeds.
On the acceptance of the grant by the State, the subject of
draining and reclaiming the lands and the proper " disposal "
of them, became a question of State policy wholly to be
determined by the legislature. .At the outset, as we see by
the act of June 22, 1852, the drainage policy was adopted,
and all the necessary machinery set in motion to carry it out,
to success. The views of the people changed as to this policy,
and it was changed by the legislature, as is seen by the
various acts of the legislature, to which we have referred,
until, finally, by the act of 1859, the proceeds arising from
the sale of these lands, are made subject to the order of the
county judges of the several counties, for such purposes as
the County Courts, respectively, may direct. Who shall
question the power of the legislature thus to change its policy,
in regard to these lands % To what tribunal shall resort be
had, to bring back the State to its original policy in regard to
them, and where is the power lodged, to compel that body to
repeal all the laws of 1859, and prior laws on this subject ? It
80 Whiteside County v. Buechell et al. [April T.
Opinion of the Court.
is a political question in which the courts cannot interfere,
and in their action upon it the legislature are responsible alone
to their consciences and the public judgment.
What then, is the position of the complainant Bressler ? for
the rights claimed by the State's attorney, as the representative
of the people of Whiteside county, are disposed of, by what
we have already said.
Bressler claims to have purchased, on the second Monday
of March, 1856, a large portion of these lands, at prices
greatly exceeding their value, on which he has paid one-fourth
of the purchase-money in cash, and has executed his several
promissory notes for the remaining three-fourths, amounting
to five thousand seven hundred and six dollars and four cents,
payable in five years from date, with interest at six per cent,
payable semi-annually in advance, and has also executed a
mortgage on the lands, to secure the purchase- money. That
he has paid interest on this balance to the amount of six
hundred and eighty-four dollars and seventy-five cents, and
avers, as to all this balance of purchase-money, he was always
desirous to pay and discharge the same in labor to be done by
him in draining and reclaiming the land, and in the construc-
tion of the necessary levees and drains as provided in the act
of June 22, 1852 ; and he further alleges that the county has
sold land the proceeds of which are sufficient to drain and
reclaim all the lands granted to the county, and render them
fit for occupation. He also alleges, that the county, by its
board of supervisors, is about to distribute among the different
townships in the county; the moneys arising from the sale of
these lands, for school purposes. That suits have been com-
menced on some of the notes he executed ; and prays for an
injunction restraining their collection. He further prays,
that the county be compelled to take its pay in labor in ditch-
ing the lands, and that they be enjoined from distributing the
funds for school purposes, but to expend them in ditching and
draining the lands. The court decreed all that was prayed,
and annihilated all the legislation of the State on the subject
of the swamp lands, except the act of June 22, 1852, which
was to be carried into full effect by the county.
1863.] Whiteside County v. Burchell ez il. 81
Opinion of the Court.
It certainly was the intention of the legislature, as we
gather it from the various acts we have cited, especially that
of February 14, 1859, which is very general in its terms, to
remit to the several counties the exclusive control over these
lands, and over their proceeds, and to release them from all
the liabilities and obligations theretofore imposed upon them
respecting them. That act releases to the fullest extent all
the interest of the State in the lands, and all the machinery
devised by the act of 1852, becomes so much useless lumber.
Personal rights, however, acquired under that act, which had
become perfect, are by no means disturbed. They remain in
full force. The complainant Bressler has a clear title to the
lands he purchased under the system devised by that act, and
the county has a right to the money he contracted to pay for
them. The contract, in this regard, is in full force and virtue.
The right he contends for, to pay for these lands in labor,
never existed in him, under the act of 1852. All the right
he had, was to become a bidder at the lettings of the work on
the sections, and if he became the lowest bidder, and executed
the required bond, that the work should be faithfully done,
he could discharge his notes in such work. Buying the land,
and executing notes and mortgage for the purchase-money,
gave him no absolute right to a contract for work. The note
was for the absolute payment of money. If the contract was,
that it should be discharged in labor, why was it not so ex-
pressed in the note ? Giving the note for the payment of
money waived any right he might have had to do the work.
But he had no such right only on the contingency that he
should be the lowest bidder at the lettings of the work, and
executed a satisfactory bond.
Suppose he had not been the lowest bidder at the lettings,
was he not to pay his note ? How else could the county pro-
cure means to pay those who performed the work except by
collecting the notes given for the land ?
No special contract is set up or shown by which these notes
were to be paid in labor. They grew out of the system
originally adopted by the State for the disposal of the swamp
lands. For wise public reasons the system was abandoned,
11— 31st III.
82 Troutman et al. v. Sch^ffkr. [April T.
Statement of the case.
and the proceeds diverted to other public objects. It is not
for Bressler to complain, as he has the land he bargained for,
with an unimpaired title. The appropriation of the proceeds
is of no other concern to him, than as affecting the value of
these lands, which possibly might have appreciated, had the
system been fully carried out to completion. As he has stated
his case, no relief can be furnished him in a court of equity.
The power of the legislature being plenary and exclusive
over the whole subject of these lands, they had the undoubted
right to appropriate the proceeds, in such direction and for
such purposes, as to them seemed most expedient. The
demurrer to the bill, for the reasons given, should have been
sustained.
The decree is reversed, and the bill dismissed.
Decree reversed.
Christian Troutman et al
v.
LOREOTZ ScBLEFFER.
Mortgage —foreclosure — description of premises. It is erroneous to
enter a decree of foreclosure of a mortgage, upon premises not men
tioned in the mortgage.
Writ of Error to the Circuit Court of Tazewell county ;
the Hon. David Davis, Judge, presiding.
This was a bill in chancery to foreclose a mortgage upon
the south half of the south-west quarter of Section twenty-
eight, Township 26 north, of Range 4 west of the third
principal meridian.
A decree was entered, directing the sale of the south half oi
the south-east quarter of the same section. The defendants
below bring this writ of errror to reverse that decree ; and
assign that the court below erred in decreeing the sale of
the south half of the southeast quarter of said section, there
being no allegation or proof that the parcel decreed to be
sold was intended to be included in the mortgage.
1863.] Matthias et al. v. Cook. 83
Syllabus.
Mr. B. S. Pbettyman, for plain tiffs in error.
Mr. Chief Justice Caton delivered the opinion of the
Court.
A single word will dispose of this case. The decree is for
a foreclosure of the mortgage upon premises not mentioned
in the mortgage. This is probably a clerical mistake, but the
error is none the less fatal.
The decree is reversed, and the suit remanded.
Decree reversed.
William H. Matthias et at
v.
Washington E. Cook.
1. Interest allowed by act of 1815— forfeiture in case of usury. The
fourth section of the act of 1845, in relation to interest, prohibited the
taking of a greater rate than six per cent., upon any character of contract ;
and declared a forfeiture of three-fold the whole amount of interest
reserved, if a higher rate should be received, or agreed to be paid.
2. Same — under act of 1849. The act of 1849 so far amended the act of
1845, as to allow the reservation of interest upon contracts for money loaned,
at the rate of ten per cent, per annum.
3. Same — under act of 1857— forfeiture. These provisions remained in
force until the passage of the act of Jan. PI, 1857, which allowed parties to
stipulate for the reservation of interest at any rate, not exceeding ten per
cent, per annum, upon all contracts ; and declared a forfeiture of ali tne
interest reserved in case a higher rate should be contracted for ; repealing
all other laws which denounced a penalty for the reservation of usurious
interest.
4. Money — defense under act of 1849. In an action upon a note which
was given for money loaned, while the act of 1849 remained in force,
where a higher rate of interest than ten per cent, was reserved, it seems the
defendant may insist upon a deduction of the interest reserved or paid
above ten per cent., as a defense to that extent, under the act of 1849.
5. Contracts — by what law governed. The laws in operation at the
time a contract is made, enter into, and form a part of, the contract ; and a
subsequent repeal of such laws will not affect the rights and liabilities of
the parties as thereby originally fixed and determined.
84 Matthias et al. v. Cook. [April T\
Statement of the case.
6. This rule applies to laws which declare a forfeiture as between par-
ties who enter into an usurious contract.
7. Pleading — discontinuance. A discontinuance operates to discontinue
the entire suit, and not a part only, of the cause of action ; its effect is sim-
ply to non-suit the plaintiff, leaving him at liberty to commence his action
again.
8. So where a plea purports to answer a part only of the declaration,
and really does answer but part, and the plaintiff replies, the defendant,
if he desire a discontinuance, should ask that the entire suit be discon
tinued, not merely that part of the cause of action which remains unan-
swered by plea.
9. And where, in such state of the pleadings, the defendant moves to dis-
continue only as to that part of the declaration which is unanswered, it is
not error to refuse the motion.
10. The defendant, by rejoining and proceeding to trial, waives his
right to a discontinuance ; the motion comes too late after verdict.
11. Splitting a cause op action. The law will not allow two actions
npon one entire demand.
Writ of Error to the Circuit Court of Marshall county ;
the Hon. Samuel L. Richmond, Judge, presiding.
This was an action of assumpsit, brought in the Circuit
Court by Cook, the defendant in error, against Matthias,
Hatton and Martin, upon a promissory note, for the sum of
$300, bearing date on the 25th of November, 1856, and pay-
able one year thereafter.
The defendants below filed two special pleas of usury,
neither of the pleas answering, or purporting to answer, the
whole declaration.
The plaintiff filed his replications to these pleas ; issues
were formed ; and he went to trial without taking judgment
as to that part of the declaration which remained unanswered.
The defendants only claimed, by their pleas, that the plain-
tiff had, by reason of the usurious character of the contract,
forfeited the amount of interest which was thereby reserved ;
but conceded that the principal of the debt could be recovered.
From the evidence given upon the trial it appeared that the
note sued upon, was for borrowed money ; that only $200 was
actually received by the makers, the other $100 being ro-
eerved as interest upon the amount received, for one year.
1863.] Matthias et al. v. Cook. . 85
Briefs of Counsel.
During the trial, and when Cook offered the note in
evidence, the defendants below moved for a discontinuance
of the action, as to that part of the declaration not answered
by plea ; which motion was not decided until after the jury-
had returned their verdict into court, when it was overruled ;
the defendants then entered their motion to discontinue the
whole action, which motion was also overruled.
Among other instructions for the plaintiff, the Circuit Court
gave the following :
6th. The court instructs the jury that there is no law under
which the defendants are entitled to deduct the usurious inter-
est claimed by them, by virtue of the contract set out in their
pleas.
To all of which rulings exception was taken.
The jury returned a verdict for the plaintiff for the whole
amount of the note, and interest which had accrued thereon.
A motion for a new trial, and in arrest of judgment, being
interposed, was overruled by the court, and judgment entered
in pursuance of the verdict of the jury ; and to this ruling
of the court the defendants excepted; and thereupon sued
out this writ of error. And now it is alleged that the Circuit
Court erred in giving the sixth instruction asked by the
plaintiff below ; and in refusing the defendants' motion for a
discontinuance.
Messrs. Bangs & Shaw, for the plaintiffs in error, con-
tended, that the statute attaches no penalty for an usurious
transaction ; but merely modifies the contract ; citing Nichols
v. Stewart et aL, 21 111. 106, and Nickerson et al. v. Bdbcock,
23 111. 561. The court below misconstrued the statutes in
relation to usury.
2. The motion for discontinuance should have been sus-
tained, upon the authority of Women v. JVexsen, 3 Scam.
R. 38.
Messrs. Glover, Cook & Campbell, for the defendant in
error.
86 Matthias et al. v. Cook. [April T.
Opinion of the Court.
1. As the law was at the time the note was given, Novem-
ber, 1856, the plaintiff below would have forfeited three-fold
the amount of the whole interest reserved. Rev. Stat. 1845,
295, sec. 4.
By the fourth section of the act of January 31, 1857, all
laws providing penalties for taking or contracting for more
than the legal rate of interest, were repealed.
The note in question, having been executed prior to the
passage of the act of 1857, is not governed by its provisions,
which declare a forfeiture of the entire interest reserved ; nor
is it governed by the law of 1845, the penalties of which had
been repealed.
2. The point made by plaintiff's counsel, that the suit
should have been discontinued, is disposed of by the case of
Van Duzen v. Pomeroy, 24 111. 289.
Mr. Justice Walker delivered the opinion of the Court :
When this note was executed, the act of 1849, in relation
to interest, was in force. The first section of that act author-
ized the loan of money, at a rate of interest not exceeding
ten per cent, per annum. Sess. Laws, 98. This act repealed
so much of the fifty-fourth chapter of the Revised Statutes of
1845, as prohibited the reservation of a higher rate than six
per cent, interest on money loaned.
The fourth section of the act of 1845, prohibited the taking
of a greater rate of interest than six per cent., and declared a
forfeiture of three-fold the whole amount of interest reserved,
But the act of 1849, amended this provision, so that for money
loaned, ten per cent, might be reserved. These provisions
remained in force until the passage of the act of 1857 (Scates*
Comp. 600), which prohibits the reservation of more than ten
per cent., and declares a forfeiture of all of the interest
reserved, and repeals all other laws declaring a forfeiture for
a reservation of usurious interest.
This note was manifestly governed by the laws in force at
the time of its execution in November, 1856, and not by the
act of 1857, which was in force at the date of its maturity,
1863.J Matthias et al. v. Cook. 87
Opinion of the Court.
The laws in operation at the time an agreement is made,
enter into, and form a part of the contract. They are as
much so, as if they were fully expressed in the agreement
itself. It is by the law then in force, that the rights and lia-
bilities of the parties are fixed and determined. Those rights
are vested, and the legislature, and the courts, are powerless
to alter them.
It follows, that the sixth instruction, given for plaintiff, was
erroneous. It declared, that there was no law under which
defendants were entitled to deduct usury, claimed by them to
have entered into the contract set out in the plea. It set up
the usury, and only relied upon a forfeiture of the interest,
and issue was joined upon it. No reason is perceived why
the defendant may not insist upon a deduction of the interest
reserved or paid, above ten per cent., as a defense, to that
extent, under the act of 1849. This instruction should, there-
fore, not have been given.
It is again urged that the court erred in refusing to discon-
tinue the plaintiff's action, on the defendant's motion. The
pleas only professed to answer a part of the cause of action.
They left unanswered two hundred dollars of the sum claimed.
On these pleas the plaintiff below joined issue, without taking
judgment for the damages unanswered by the pleas. During
the progress of the trial, and when the note was offered in
evidence, the defendants moved the court for a discontinuance,
as to the two hundred dollars not answered by the pleas.
This motion was afterwards overruled, and the jury found a
verdict for the full amount of the note and interest, upon which
judgment was rendered.
The rule of practice allowing a party to demand a discon-
tinuance, is one highly technical, and not entitled to much
favor at the hands of courts. Instead of promoting, it delays
justice, and is not based upon reason, and should not be ex-
tended beyond the strict requirements of the rule. When a
discontinuance is produced, it is because there has been a
chasm or hiatus produced in the proceedings, and it operates
to discontinue the entire suit, and not as to a part only, of the
cause of action. In this case the first motion was to discon-
88 Ex pabte Bollig. [April T.
Syllabus.
tinue the action only as to that part of action not answered
by the pleas.
Had this motion have been allowed, it would have been
to split an entire cause of action. A discontinuance only
operates as a non-suit, and leaves the party at liberty to com-
mence again. Had this motion been allowed, the trial would
have progressed to a determination, as to the portion of the
damages to which pleas had been filed, and would have left
the plaintiff at liberty to maintain another action on that part
of the damages for which the suit was discontinued ; thus
giving two actions, on one entire demand, which the law will
not allow. The defendant below was not entitled to a discon-
tinuance of a part of the action, and that was all he asked.
The motion to discontinue after the verdict of the jury was
returned, came too late. The party, to avail himself of that
right, must ask it before he takes any further steps in the
cause, as by rejoining or proceeding to trial, etc., he waives
his right to a discontinuance. The court committed no error
in refusing his motions. The judgment of the court below is
reversed, and the cause remanded.
Judgment reversed.
In the matter of Peter Bollig, eosjparte.
APPLICATION FOR HABEAS CORPUS.
1. Imprisonment — magistrate — collection of fines. The town council
of the town of Princeton, in Bureau county, has the power, under the char-
ter of the town, granted by act of the General Assembly, approved February
18, 1857, to provide by ordinance, that any person who may be guilty of the
breach of an ordinance prohibiting the traffic in liquors, shall, " upon con-
viction, forfeit and pay to the said town of Princeton, the sum of twenty-
five dollars for each and every offense, and be imprisoned in the county jail
of said county y until the fine and costs be paid.*'
2. Such a provision is not to be understood as denouncing imprisonment
as the punishment ; power is given thereby to assess a fine only, on convic-
tion. The imprisonment is but a mode provided for collecting the fine and
costs.
1863.] Ex parte Bollig. 89
Statement of the case.
8. It is not essential to the power to imprison in such case, that there
should first have issued a fieri facias, and an effort made in that way to sat-
isfy the fine out of the goods of the defendant ; but he may be imprisoned
at once, upon his refusal to pay the fine and costs.
4. If the offender is unable to pay, he may get relief under an equi-
table construction of section 195 of the criminal code.
5. Imprisonment — police magistrate— jurisdiction. The police magis-
trate of the town of Princeton is no more than a justice of the peace, and
would have no jurisdiction of an offense the punishment for which is impris-
onment ; it would be within the prohibition of the tenth section of article
thirteen of the constitution.
6. But where the punishment denounced is a fine, and the incidental
power of imprisonment is only given as a means of enforcing that punish-
ment— as a mode provided for collecting the fine — such case is not within
the constitutional prohibition mentioned.
This was an application to this court by Peter Bollig, for a
writ of habeas corpus.
It was represented in the petition, that Bollig was then
imprisoned and detained in the county jail of Bureau county,
by one Silas Battey, (who was, at the time, sheriff of said
county and keeper of the jail), without any legal authority,
under color of a certain pretended commitment, issued by one
George O. Ide, a justice of the peace of said county.
The following history of the proceedings upon which the
commitment was issued, will show the grounds of this appli-
cation.
The town of Princeton, in Bureau county, became incor-
porated under a charter granted by act of the General
Assembly, approved February 18, 1857. Subsequently there-
to, on the 23rd of February, 1863, the town council of the
town of Princeton passed an ordinance relating to brandy,
rum, gin, whisky, etc., the second section of which was as
follows :
" Any person who shall sell, barter or exchange ale, porter,
beer, wine, brandy, rum, gin or whisky, or any other spirit-
uous, vinous, malt, fermented, mixed, or intoxicating liquors,
or any mixture, part of which is any of said liquors, within
the corporate limits of said town, or within one mile thereof,
except as hereinafter provided ; or who shall, upon the sale,
12— 31stIll.
90 Ex parte Bollio [April T.
Statement of the case.
barter or exchange of any goods, chattels, wares, merchandise,
property, chose in action, or upon any promise, contract or
agreement, expressed or implied, except as hereinafter pro-
vided, deliver or furnish, or cause to be delivered or furnished,
or knowingly suffer to be taken or received, any brandy, rum,
gin, whisky, ale, porter, beer or wine, or any other spirituous,
vinous, malt, fermented, mixed, or intoxicating liquors, or any
mixture, part of which is any of said liquors, shall be con-
sidered and adjudged to be guilty of a nuisance, and every
such person shall, upon conviction thereof, forfeit and pay to
the said town of Princeton, the sum of twenty-five dollars,
for each and every offense, and be imprisoned in the county
jail of said county, until the fine and costs be paid."
The third section of the same ordinance, was as follows :
"The giving away by any person or persons, within the
corporate limits of said town, or within one mile thereof, of
any of the aforesaid liquors, with a view to evade any of said
penalties provided in said second section, or if any person or
persons shall suffer any other person or persons to drink any
of said liquors in any public room, house or place, occupied
by him, her or them, he, she or they so offending, shall be
considered and adjudged to be guilty of a nuisance, and be
punished with fine and imprisonment as is provided in said
second section."
Bollig was charged with a violation of the second section
of the ordinance above cited, and a trial being had before the
police magistrate of the town of Princeton, and a jury, a
verdict was returned as follows :
"We, the jury, find Peter Bollig, the defendant, guilty of
violating section two of an ordinance of said town, relating
to brandy, rum, gin, whisky, ale, porter, beer, etc., passec
February 23, 1863, in having sold beer ; and assess the fine
at twenty-five dollars."
In pursuance of the verdict, the police magistrate entered
the following judgment :
"It is therefore considered and determined by me, that
said plaintiff, the Town of Princeton, have and recover of the
said defendant, Peter Bollig, for its demand, and the violation
1863.] Ex parte Bollig. 91
Statement of the case.
of said section two, the sum of twenty-five dollars, the fine
aforesaid, assessed bj said jury, and also costs of suit herein,
taxed at $23.37. And it is considered and directed by me,
that in case said defendant, Peter Bollig, shall fail or refuse
to pay said fine and costs so adjudged against him, that he,
said defendant, be committed to the county jail of Bureau
county, Illinois, until said fine and costs shall be paid, or
otherwise discharged by process of law."
The police magistrate who rendered the foregoing judg-
ment, afterwards issued a process, directed to the town con-
stable, town marshal, or any policeman of said town, or any
constable of said county, which recited the proceedings here-
inbefore set forth, and concluded with the following direction :
"We therefore command you to demand of said Peter
Bollig the amount of said fine and costs ; and in case said
Peter Bollig shall fail or refuse to pay the same, then you
are to take the said Peter Bollig, and convey him to the
county jail of said county, and deliver him into the custody
of the keeper of said jail ; and you, the said keeper, in such
case, are hereby required to receive the said Peter Bollig into
your custody in said jail, and him there safely keep, pursuant
to the provisions of section three of article seven of the
charter, and of an ordinance of said town, entitled i An ordi-
nance relating to imprisonment in the county jail/ until said
fine and costs shall be paid, or otherwise discharged by process
of law."
" Given under my hand and seal," etc.
This process coming to the hands of the town constable, he
indorsed thereon the manner in which he had executed the
same, as follows :
" Demand having been made by me of the within named
defendant, for the within debt or fine, and costs, and he having
refused to pay said amount, I have taken the body of the
within named defendant, Peter Bollig, and have delivered
him to the keeper of the county jail of said county," etc.
The sheriff of the county entered the following indorsement
npon the process :
" Received into my custody, in the county jail of Bureau
92 Ex parte Bollig. [April T.
Brief for the applicant.
county, State of Illinois, in Princeton, this 21st day of April,
1863, at half past ten o'clock p. m., the within named defend-
ant, who is delivered to me, and by me received, pursuant to
the direction of the within writ.
(Signed) " Silas Battey, Keeper."
The petitioner alleged that the process above referred to was
the only final process which was issued upon said judgment,
and that he is still detained and imprisoned in the county jail
of Bureau county, under color of the said pretended com-
mitment.
The petitioner also claims that the said judgment and pro-
cess are illegal and void, and that he is wrongfully confined
by reason thereof; and therefore he applies for a writ of habeas
corpus,
Mr. George L. Paddock, for the applicant.
1. This imprisonment is either by way of punishment for
the offense alleged to have been committed, or it is by way of
process to enforce the payment of the fine assessed.
It is insisted that in this case the imprisonment is the
punishment for the offense, which the police magistrate, who
is no more than a justice of the peace, has no power to enforce,
under the prohibition in the tenth section of article thirteen of
the constitution of this State. Paris v. The People, 27 111.
76 ; 17 111. 163, and 339 ; 25 111. 84 ; Paley on Convictions,
p. 271.
2. But even regarding the imprisonment as a means of
coercing payment of the fine, the commitment was wrong,
and the prisoner should be discharged; for, where the im-
prisonment is merely subsidiary to enforcing payment of the
fine, the magistrate cannot legally commit, until he has ascer-
tained the want of sufficient goods to answer the penalty;
which should have been done by the issuing and return of an
execution against the goods of the party convicted. Paley
on Convictions, 272 ; Mill v. Bateman, 2 Strange E. 710.
1863.] Ex parte Bollig. 93
Opinion of the Court.
Mr. Justice Breese delivered the opinion of the court :
This is an application for a habeas corpus, in which the
petitioner alleges that he is imprisoned and detained in the
jail of Bureau county, by the sheriff of that county, without
any legal authority, under color of a pretended commitment
issued by a justice of the peace of that county. From the
proofs exhibited, it appears the petitioner was duly prosecuted
and convicted before the police magistrate of Princeton, in
the county of Bureau, of a violation of section two of an
ordinance of that town relating to brandy, rum, gin, whisky,
beer, etc., adopted February 23, 1863. This ordinance pro-
v .es, among other things, by section two, that if any person
shall sell, barter or exchange ale, porter, beer, etc., within the
corporate limits of the town, or within one mile thereof, he
shall be considered and adjudged guilty of a nuisance, and
every such person shall, upon conviction thereof, forfeit and
pay to the town, the sum of twenty-five dollars for each and
every offense, and be imprisoned in the county jail until the
line and costs are paid.
The first question arising in this case is, had the town
council of the town of Princeton power to pass this ordi-
nance ?
The charter of the town was granted by an act of the Gen-
eral Assembly, approved February 18, 1857, and is declared
a public act. Session Laws 1857, page 1415. By clause six
of article four, the town council has power to make regula-
tions to secure the general health of the inhabitants ; to
declare what shall be a nuisance, and to prevent and remove
the same. By clause nineteen, to tax, restrain, prohibit and
suppress tippling houses, dram shops, gambling houses, etc.,
within the town and within five miles thereof, but not to
license any house or place for the sale of intoxicating drinks
of any kind as a beverage. By clause thirty-one, to regulate
the police of the town ; to impose fines and forfeitures and
penalties for the breach of any ordinance, and to provide for
the recovery of such fines and forfeitures, and the enforce-
ment of such penalties. By clause thirty-three, to prevent
94 Ex parte Bollig. [April T.
Opinion of the Court.
and prohibit the introduction, keeping, manufacturing or
selling of any vinous, malt, spirituous, mixed or intoxicating
liquors within the town, and within fi.ve miles thereof, except
for chemical, medicinal and mechanical purposes, etc. By
clause thirty-four, to make all ordinances which shall be
necessary and proper for carrying into expiration (operation)
the powers specified in the act, so that such ordinances be
not repugnant to nor inconsistent with the constitution of the
United States or of this State.
By clause three of article seven, the town council has power
to provide for the punishment of offenders against the ordi-
nances of the town, by imprisonment in the county jail not
exceeding thirty days for any one offense, and in all cases where
such offenders shall fail or refuse to pay the fines, forfeitures
and costs which may be recorded (recovered) or adjudged
against them ; and it shall be competent for the magistrate or
other court before whom the same shall be tried, to direct that
such offenders shall be committed to the county jail until such
fines, forfeitures and costs shall be paid or otherwise dis-
charged by due process of law. Page 1423.
Wrong punctuation, by placing a semi-colon after the word
" them," with the insertion of the conjunction " and," which
we have underscored, makes a bad sentence. By omitting
them, the sentence is made intelligible, and expresses the
meaning of the legislature, which is, that if the convicted
party shall fail or refuse to pay the fine, etc., it shall be com-
petent for the magistrate to direct that he be committed to
the county jail, until, etc.
Ample power is given by the charter, it appears, to pass
the ordinance in question. It is in conformity to the power
conferred in all respects.
The counsel for the petitioner takes the ground that this
imprisonment so authorized, is punishment — that it is a part
of the judgment, and that it was the intent of the ordinance
to create an offense punishable with imprisonment and fine.
In support of this view, reference is made to the third sec-
tion of the ordinance which declares a certain offense to bo a
nuisance, and to be punished by fine and imprisonment u as
1863.] Ex parte Bollig. 95
Opinion of the Court.
is provided in said second section." It is quite probable the
town council, in enacting this ordinance, may have had more
enlarged views of their powers than their real extent would
justify. When that section comes before us for examination,
such a construction will be put upon it, as the words used,
and the object of the enactment will warrant.
Upon the hypothesis that the second section denounces
punishment by imprisonment on a conviction for its breach, it
is correctly said, the police magistrate had no jurisdiction of
the offense, for such magistrate is no more than a justice of
the peace {In the matter of James Welch, ex parte, 17 111. 161),
and is within the prohibition of the tenth section of article
thirteen of the constitution of the State. That article, in the
proviso, declares emphatically, that justices of the peace
shall try no person except as a court of inquiry, for any
offense punishable with imprisonment or death, or fine above
one hundred dollars. Scates' Comp. 73. But does this ordi-
nance denounce imprisonment on conviction ? We do not so
understand it. Power is given to the magistrate to assess a
fine only, on conviction. The language is, " shall forfeit and
pay the sum of twenty -five dollars." This is the whole extent
of the punishment, the assessment of a fine. The imprison-
ment, though connected in the sentence by the copulative con-
junction "and," is but a mode provided for collecting the
fine and costs. It is incident to the power to fine, and cannot,
in our judgment, be regarded in the light of punishment.
Paley on Convictions, 271. The constitution never designed
to abridge the modes usually resorted to, and most generally
pursued, to carry out the powers with which justices of the
peace are vested. They have power to try a case and assess
a fine on conviction, if the fine does not exceed one hundred
dollars. Of this there is no dispute. To collect this fine,
and the costs accruing upon the trial of the cause, the magis-
trate, in very many cases, would be powerless without the
power to hold the offender until he paid them or was dis-
charged in some other mode. The fine and costs in this case
were the principal thing, and over which the magistrate had
ample jurisdiction. The provision of the constitution was
96 Ex parte Bollig. [April T.
Opinion of the Court.
designed to inhibit a justice of the peace from the trial of any
case where imprisonment was denounced bj the law as pun-
ishment in the first instance on conviction. That class of
offenses is a large and important one, and there was great
propriety in excluding them from the cognizance of justices
of the peace. Not so, where a fine is the punishment, and
which may be paid on the instant.
To meet that large class of cases arising from breaches of
town ordinances and such like, where a fine is the only pen-
alty, the offenders are not, usually, willing to wait until a
fi.fa. can be issued and returned. A summary mode of deal-
ing with them, is indispensable to the safety of society and
the preservation of good order, and it is no hardship upon
them, if they are unwilling to pay the fine aforesaid, that the
ordinary means should be used to compel them to pay. If
the offender is unable to pay, he may get relief under an
equitable construction of section 195 of the criminal code ; or
if he cannot thus, then by some action of the town council,
who would, doubtless, desire to relieve the town from the
charge of his maintenance in prison after the expiration of a
reasonable term of imprisonment. As we look at the case,
the imprisonment is but an incident of the fine. This court
has said, a justice of the peace, in fining a party for a con-
tempt, may direct him to be imprisoned until the fine and
costs are paid. Brown v. The People, 19 111. 613. The
principle is, inasmuch as the justice has power to fine, he
has all the power necessary to make the granted power
effectual, by imprisoning the offender until the fine shall be
paid. The imprisonment, as in this case, is only a consequence
of the power to fine.
The writ must be refused.
Habeas Corpus refused.
1863.] Com'rs of Swan Township v. People ex rel. 97
Statement of the case.
The Commissioners of Highways, of Swan Town-
ship, Warren County,
v.
The People, etc., ex rel. John D. Walden.
1. Mandamus — excuse for not obeying peremptory writ. Where a per-
emptory writ of mandamus was awarded against commissioners of high-
ways, requiring them to open a certain road, it was held to be a sufficient
excuse, on the part of the commissioners, for not obeying the writ, that
after the writ was awarded, and before it was issued and served, the road
thereby directed to be opened was vacated by an order of the same com-
missioners, made in pursuance of authority so to do, conferred upon them
by statute.
2. Tbbspass— justification, mandamus. Should commissioners of high-
ways proceed, in obedience to the mandate of a court, to open a road, after
the same had been discontinued by competent authority, they would be
trespassers; a peremptory writ of mandamus requiring them to do the act,
could not be pleaded in justification of such trespass.
3. Bill op Exceptions — token necessary. The sworn answer of parties
to a writ of attachment issued against them to show cause why they should
not be fined for contempt in refusing to obey a peremptory writ of man-
damus, is no part of the record of the proceedings upon the writ of attach-
ment, unless it be made so by bill of exceptions.
Writ of Error to the Circuit Court of the county of
Warren ; the Hon. Charles B. Lawrence, Judge, presiding.
At the October term, 1849, of the Circuit Court of Warren
county, John D. Walden, in the name of the People, etc.,
filed his affidavit and relation against the commissioners of
highways of Swan township, in said county, in which it was
set forth that a certain road was legally established in said
township, which road had been, and was, obstructed by fences,
etc., and travel on parts of it entirely stopped. The cause
coming on to be heard, a peremptory writ of mandamus was
awarded at the October term, 1861, of said court, requiring
the commissioners to proceed to open the road in question.
Afterwards, on the 24th of December, 1861, the writ was
issued, which was returned indorsed by the sheriff, served
February 4, 1862.
13— 31st III.
98 Com'rs of Swan Township v. People ex rel. [April T
Statement of the case.
Afterwards, at the March term, 1862, of said court, an affi-
davit was filed, setting forth the fact of the service of the writ,
that said commissioners had refused and neglected to open
said road and obey said writ. Thereupon, on motion, the
court ordered an attachment to issue against the commission-
ers. On the 25th day of March, 1862, the sheriff returned
the writ, together with Solomon Perkins, Israel Jared, and
Absalom Vandever, the said commissioners, in court. On the
same day, the commissioners filed their answer to the writ of
attachment, in which they denied that they were guilty of
any contempt of the court; that the said peremptory writ
of mandamus was served upon them after said road was
vacated and discontinued according to law, in the following
manner: That in the month of December, 1861, a petition
was circulated and signed by about forty-two, legal voters,
residing within three miles of said road ; that the petition
was published according to law ; that afterwards, on the tenth
day of January, 1862, the commissioners, in accordance with
law, did decide to discontinue said road, and then and there
made their order in writing, under their hands as such com-
missioners, discontinuing said road ; and the same was filed
in the town clerk's office ; which proceedings, in discontinuing
said road, were all had since the decision of said court order-
ing said road to be opened, and before the service of said writ
upon them.
They admit they have not opened the road, but claim that,
under the circumstances, they were not bound so to do.
The answer was sworn toby all of them. Afterwards, and
during the said term of said court, upon motion, the commis-
sioners were discharged, but upon the payment of the costs
of the attachment. And on the People's motion, it was
ordered by the court that an alias peremptory writ of man-
damus issue to the said commissioners, requiring them to open
the road.
The commissioners bring the cause to this court by writ
of error, and assign the following, to wit :
1. The court erred in adjudging costs in favor of the
defendants in error, and against said commissioners, upon the
attachment.
1863.] Com'rs of Swan Township v. People ex rel. 99
Briefs of Counsel.
2. The court erred in ordering an alias writ of peremptory
mandamus against the commissioners.
Mr. A. G. Kirkpatrick for the plaintiffs in error, pre-
sented the question, whether the commissioners of highways
could properly proceed to discontinue, after they had been
ordered to open the road ; and cited Scates' Comp. 347, 353,
as setting forth their powers and duties.
Mr. W. C. Goudy, for the defendants in error, said :
1. It might well be doubted, whether an inferior tribunal
can be permitted, after the awarding of a peremptory writ of
mandamus, to avoid the force of the command, by an exercise
of power, which, under other circumstances, would be lawful.
It carries on its face the appearance, not only of evasion,
but of defiance.
But if it be admitted that the vacation of the road was a
good reason why it should not be opened, we are led to
inquire, whether such fact is properly presented in this record.
2. The affidavit of the commissioners is no part of the
record, and cannot be noticed in this court. The plaintiffs in
error call their affidavits an answer to the writ of attachment,
and contend that it is to be treated the same as a plea or return
to an alternative writ of mandamus.
The proposition cannot be maintained. Such a thing as a
plea or return, or demurrer to a writ of attachment, is un-
known. The party attached is simply brought before the
court, and required to show cause, either in writing or ver-
bally, why he should not be fined ; and the court may hear
any evidence tending to satisfy itself in regard to the con-
tempt. Nor does the law recognize such a thing as an
answer or plea to a peremptory writ of mandamus, because it
is a final process, and the end of all litigation in regard to the
matter in controversy.
The affidavit of the commissioners, therefore, is to be treated
like any other affidavit filed in the progress of the cause, and
100 Com'bs of Swan Township v. People ex rel. [April T.
Briefs of Counsel.
is no part of the record, because it is not embodied in a bill of
exceptions. McDonald v. Arnaut, 14 111. 58 ; Edwards v.
Patterson, 5 Gilm. 126 ; Corey v. Russell, 3 Gilm. 33*6 ;
Magher v. Howe et al., 12 111. 380.
The presumption is, that the court acted on proper evidence,
and the judgment will not be reversed, unless it appears
affirmatively from the record that all the evidence is preserved,
and upon such evidence there was a wrong decision made.
There is no statement whatever in this record that it contains
all the evidence. Indeed, it does not profess to contain any
evidence. The only facts presented are contained in the
affidavit, and that was presented on the motion to punish the
commissioners for contempt ; upon the hearing of that motion,
for reasons satisfactory, and which are unknown to this court,
the court ordered the plaintiffs in error to pay the cost.
The relator made a separate motion for an alias peremp-
tory writ of mandamus, which was allowed.
What the evidence was on the hearing of this motion does
not appear, but it will be presumed to have been sufficient to
authorize the order entered. Thompson v. Schuyler, 2 Gilm.
272 ; Thomas v. Leonard, 4 Scam. 557 ; Eaton v. Graham,
11 111. 620.
Mr. Kiekpatkick, for the plaintiffs in error, in reply, in-
sisted that the answer of the defendants below was not a mere
affidavit, but a regular answer, not only to the writ of attach-
ment, but to the whole proceeding against them; and as
much a part of the record, without a bill of exceptions, as
the petition or writ.
He cited the following authorities as supporting the position
that an answer or return may be made in a proceeding of
this kind, after a peremptory writ has been issued : Tapping
on Mandamus, pp. 408, 381, (side page 337), 66, (side p. 14),
and side pages 407 and 385.
1863.] Lill et al. v. Neafie. 101
Syllabus.
Mr. Chief Justice Caton delivered the opinion of the Court:
If this record showed that this road had been vacated, in
the mode provided by the statute, and that the proceeding
vacating it was ended and determined, we should not hesitate
to reverse this judgment. Such vacation would have been a
sufficient excuse for not obeying the writ. There would have
been no road to open. Notwithstanding the mandate of the
court, the commissioners would have been trespassers for
opening it. The writ of mandamus could not be pleaded in
justification of such trespass. But there is nothing in the
record to show that the road has been vacated. There is an
affidavit copied into the record, stating that fact, but it is not
in a bill of exceptions, and is no part of the record. We
should have the certificate of the judge that it was read, and
that there was no countervailing proof. Then we should be
prepared to examine, and say whether the court below de-
cided correctly or not, on the proof The judgment must be
affirmed.
Judgment affirmed.
William Lill et al.
v.
John A. J. Neaple.
1. Trustees — their removal. Where real estate is conveyed to a true
tee, for the purpose of securing a debt, with power in the trustee to sell the
land in the event of non-payment, the mere absence of the trustee from the
State, will not, of itself, constitute sufficient ground for his removal ; but
when, in addition to his absence from the State, he neglects to give atten-
tion to his duties as trustee, a court is fully warranted in removing him,
and appointing a suitable person to carry the trust into effect.
2. Absence of trustee — foreclosure. But in such case, where the
trustee is absent and neglects his duty, the better practice is, to file a bill
for a foreclosure, and in the decree require the master, or a special commis-
sioner, to make the sale and execute the trust.
Appeal from the Superior Court of Chicago.
This was a suit in chancery, instituted in the court below,
102 Lill et at v. Neafie. [April T.
Statement of the case.
on the 30th of April, 1862, by John A. J. Neafie against
William Lill, Orrin J. Rose and Otho Klemm. It is alleged
in the bill that Hose, to secure the payment of a promissory
note which he had given the complainant, for the sum of five
thousand dollars, conveyed by deed of trust to Otho Klemm,
on the 17th day of July, 1857, certain lots of land lying in
Cook county. The power was given by the deed, to the
trustee, in case of default in payment of the note, and upon
application of the holder, to proceed to sell the premises,
upon giving such notice as was required in the deed ; execute
deeds to the purchaser, apply the proceeds, etc. ; provided,
that when said note and all expenses should be paid, the
trustee, or his legal representatives, should re-convey all the
estate acquired by the deed, in the premises remaining
unsold.
That, on the 24th day of November, 1857, Rose conveyed
the premises, with other property, to Michael Diversy, for the
benefit of his creditors ; that Diversy, pursuant to said assign-
ment, sold the premises to William Lill, one of the defend-
ants. That the assignment did not affect the complainant's
lien, and was not recognized by him.
That the premises were, at the time of filing the bill, of less
value than the amount of said note and interest, which
remained entirely unpaid.
The bill then stated sundry unsuccessful efforts of com-
plainant to find Mr. Klemm, in order to get him to perform
his trust by selling the premises, etc., and charged that
Klemm had left the city of Chicago and State of Illinois, and
thereby abandoned his trust, and become unable and dis-
qualified, by his non-residence, to execute the same, and that
the complainant had been unable to make personal applica-
tion to Klemm to execute the trust, or in any manner to find
him, or to procure him to execute the same. The prayer of
the bill was, that Klemm be removed from his office of trustee,
and a substitute appointed, who would proceed to execute
the trust.
The joint and several answers of all the defendants, Rose,
1863.J Lill et al. v. Neafie. 103
Statement of the case.
Klemm and Lill, filed 7th of July, 1862, admitted the note
and trust deed; admitted the assignment from Rose to
Diversy, and the sale by Diversy to Lill.
The answers denied that Klemm had left the city of Chicago
and State of Illinois, and thereby abandoned the trust, and
become unable and disqualified, by his non-residence, to ex-
ecute the same ; and averred that he had never refused, and
was in no manner disqualified, to execute the trust aforesaid.
Replication, and reference to master to take proofs on part of
complainant.
Master's report, filed September 16, 1862, contained the
deposition of Mr. Perry, the sole witness in the case, who
testified substantially as follows : The note (to secure which
the trust deed had been given), belonged to the complainant,
and no part of it had been paid ; the land was not of sufficient
value to pay it ; the complainant had a conversation in April
previous, in my office, with defendants, Rose and Lill ; they
both declined to pay, and advised complainant to have the
land advertised and sold. The complainant made efforts to
have Mr. Klemm, the trustee, sell the premises. By his
direction I prepared a notice of sale, went to the city of New
York to see Klemm, and get him to sign the notice, and do
whatever was necessary to make the sale. I could not find
him in New York ; I went to the office where he had for-
merly been ; was told there, by Adolph Klemm, his brother,
that Otho Klemm, some time previous, went to Washington,
where he supposed he then was, and he then gave me his
address. I then sent the notice to Washington, to Otho
Klemm' s address, with a request that he sign it and return it
to me, that the property might be advertised and sold. I
waited about a month and did not hear from him, and then
filed the bill in this cause. Some two months after the bill
was filed, I received a letter from Mr. Klemm, saying that he
sent the notice to a friend, or his attorney in Chicago, to be
delivered to me, if the person to whom it was sent thought
proper. It never has been delivered. Mr. Klemm has not
been here, except temporarily, for nearly three years. I have
understood, from his friends, that he has resided in New York
104 Lill et al. v. Neafie. [April T.
Brief for the appellants.
City prior to last spring, for more than a year, and that since
last spring he has been employed in the United States
Treasury Department, at Washington. The letter I received
from him was dated at Washington.
The cause was heard upon the pleadings and above proofs,
and decree was entered by the court below : That the said
Klemm, by his non-residence, and by his failure and neglect
to comply with the request of the complainant to execute
the trusts in the trust deed specified, was an unsuitable per-
son longer to hold said trusts, or to execute the same, and
had abandoned the same ; and said court did order, adjudge
and decree, that said Otho Klemm be and thereby was re-
moved and divested from and of the trusts created, and in
him vested, in and by said trust deed, and from and of all
the rights, titles and interests conveyed to, or vested in him
by virtue of said deed of trust, and appointed a new trustee
in his place and stead.
From that decree the defendants below took this appeal,
and by their assignment of errors, question the propriety of
removing Klemm from his trusteeship.
Messrs. Burnham & Martin, for the appellants, sought to
reverse the decree, because of the insufficiency of the com-
plainant's case, upon the pleadings and proofs.
The trustee is not a mere agent, but an officer, constituted
by the parties, and vested with the duties and responsibili-
ties of the trust. And in the absence of any mala fides,
will be favorably regarded and treated by the court. Law
of Trusts and Trustees, by Tiffany & Bullard, 387, citing
Lord Hardwick.
There was no incapacity or unfitness shown to have existed
at the time of filing the bill.
The simple fact of non-residence does not render the trus-
tee an unsuitable or unfit person to execute the duties of the
trust. Although trustees may not, in general, delegate their
powers, yet they may employ solicitors and agents, and
govern themselves by their advice, and employ agents to do
ministerial acts — such as the sale of property, and purposes
1863.] Lill est al. v. Neafie. 105
Biiefs of Counsel,
of that nature, and it will be sufficient that the trustee retains
the supervision over the person so employed. Law of Trusts
and Trustees, (before cited,) p. 860 ; Hill on Trustees, 540, 541.
Ex parte Belchier, Amb. 219 ; Sinclair v. Jackson, 8 Cow.
582. In Hawley v. James, 5 Paige, 487, the Chancellor says,
" They (trustees) may entrust an agent with an authority to
make conlitional sales of land, lying at a distance from the
place of residence of the trustees," subject to their ratifica-
tion, etc., and may empower him to make conveyances, after
they have ratified the sale. See Hill on Trustees, p. 474.
We have no statutory regulations upon the subject of remov-
ing trustees in this State. The power is inherent in the
court, to be exercised and regulated according to the general
usages and practice in equity. This court, in Sargeant v.
Howe et al., 21 111. 148, says : " If it be not shown that the
trustee is an improper person, he ought not to be removed."
This is not a case of permanent residence abroad — out
of the realm. These States are one nation. The trustee ie
still a citizen, and resident of the country — not a foreigner
— but, alike with complainant, within the jurisdiction of the
courts of our country.
Mr. Sanfoed B. Perry, for the appellee, cited 1 McLean
E. 199, 4 Johns. Ch. E. 368, and 3 Kernan E. 593, as sus-
taining the doctrine that the trustee must attend personally
to the execution of the trust; and contended that it must
follow, that when a trustee has removed permanently from
the State, after the creation of the trust, he has thereby aban-
doned the trust, if the cestui que trust elect so to treat it, and
becomes an unsuitable person longer to hold the position of
trustee.
In this case, the trustee not only removed from the State,
but declined to execute the trust, and therefore should have
been removed.
Mr. Perry also relied upon the authorities cited by the
appellant's counsel.
14— 31st III.
106 Lill et al. v. Neafie. [April T.
Opinion of the Court.
Mr. Justice Walker delivered the opinion of the Court:
It appears from the evidence in this case, that the trustee
left the State, and gave this trust no attention after 1859.
The money had been due almost a year before he left. When
his residence was ascertained, and he was requested, by letter,
to proceed and sell the property, he failed to take any steps,
or even to reply to the letter, for months, and then only says
that he had sent the notice of sale to a friend, or to his attor-
ney, to be delivered to the attorney of complainant. If this
notice was ever sent, it was not delivered. This would seem
to be gross neglect of duty on the part of a trustee ; it almost
amounts to a denial of justice. And when it is remembered,
that both Rose and Lill had advised complainant to have the
property sold, we are at a loss to account for such action,
unless it is mere inattention, almost amounting to a disquali-
fication.
If we were to judge how he would act in the future, by his
past conduct, we may conclude that a sale would not be had
in a reasonable time. The mere absence of a trustee from the
State might be attended with inconvenience, but would not,
of itself, constitute sufficient grounds for his removal. He
might still devote proper time and attention to the trust fund,
to carry it out in good faith. But when, in addition to his
absence from the State, he gives no attention to his duties as
trustee, a court is fully warranted in removing him, and
appointing a suitable person to carry the trust into effect.
The better practice, however, would be, to file a bill for a fore-
closure, and on a decree require the master, or a special com-
missioner, to make the sale and execute the trust. The
evidence of neglect in this case fully warranted the court
below in decreeing his removal. The decree must therefore
be affirmed.
Decree affirmed.
1863.] Linton v. Porter. 107
Opinion of the Court.
William Linton
v.
Maey Ann Poktek.
1. Consideration— what is good, etc. — want of consideration. A sale
and delivery of personal property is a good consideration for a note
given therefor although the seller had no title ; and the purchaser cannot,
while he retains the possession of the property, defeat a recovery upon the
note upon a plea of want of consideration.
2. Implied warranty of title — sales of personalty. Upon the sale of
personal property there is an implied warranty of title, and if, in such
case, the rightful owner shall take the property out of the possession of
such purchaser, he may recover its value upon that warranty.
Appeal from the Superior Court of Chicago ; the Hon.
Van H. Higgins, Judge, presiding.
The facts of the case are sufficiently stated in the opinion
of the Court.
Messrs. Walker & Thomas, for the appellant.
Messrs. Ward, Stanford & Aiken, for the appellee.
Mr. Chief Justice Breese delivered the opinion of the Court
This was an action brought before a justice of the peace
on a promissory note made by the appellant to the appellee,
the plaintiff below, and judgment for her. On appeal to the
Superior Court of Chicago, the judgment was affirmed.
The defense was, want of consideration.
The facts are, that the plaintiff's husband died possessed
of an iron pile hammer, which the plaintiff sold and delivered
to the defendant, receiving the note in suit in payment
therefor.
The hammer is in defendant's possession, and the sale and
delivery to him, was a good consideration for the note. The
plaintiff, by her sale of the hammer, impliedly warranted
the title to it, and if it shall be taken out of the possession of
the defendant, he can recover its value on this warranty.
108 Leighton v. Hall. [April T,
Statement of the case.
It would be great injustice to allow this defense, and at the
same time allow the defendant to keep the hammer. Having
undisturbed and unquestioned possession of the hammer, be
must pay the note. He cannot be allowed to repudiate his
note, and keep the property also.
The judgment is affirmed. Judgment affirmed.
Newell S. Leighton
Parthenia Hall.
1. Pkocess — its requisites. The 26th section of the 5th article of the
constitution declares that " All process, writs and other proceedings, shall
ran in the name of ' The People of the State of Illinois* "
2. Arrest — order of the court. A certified copy of a mere decretal
order or rule of a court of chancery, directing the sheriff to attach the
body of a party, and detain him in close custody until he shall comply
with certain requirements of the court, will not authorize the officer to
make the arrest, nor is it his duty to obey the command in the order or rule
in that respect.
3. Arrest — without process — power of the court. Executive officers
of a court may, upon a mere order of the court, detain persons who are in
the presence of the court, or who are already in custody ; but it does not
follow that such an order may be sent into the country, without process,
which will authorize an arrest.
4. Before a sheriff can be required to make an arrest, out of the pres-
ence of the court, he should be furnished with such process as the con-
stitution prescribes.
Writ of Error to the Circuit Court of the county of
Cook ; the Hon. George Manierre, Judge, presiding.
Parthenia Hall filed her bill for a divorce in the Cook
Circuit Court, against her husband, Jacob B. Hall, and
in the course of the proceedings therein, on the 21st Febru-
ary, 1861, the court entered an interlocutory decree that the
defendant pay $100 alimony, pendente lite, to enable her
to prosecute the suit.
1863.] Leighton v. Hall. 109
Statement of the case.
The court ordered the defendant to pay said sum to the
sheriff, to whose hands a copy should come for service, by
delivering a copy thereof, to be by him deposited with the
clerk. "And in default of such payment by the said defendant,
it is further ordered by the court that such sheriff do thereupon
attach the body of the said Jacob B. Hall, and him safely
keep in close custody, until he shall have paid the said sum
of one hundred dollars, as aforesaid, together with the costs
of such sheriff upon this order, or until he shall be otherwise
discharged by the court. And let the clerk give the said
complainant a certified copy of this rule, directed to the
sheriff of any county in this State to execute ; and the sheriff',
without requiring pre-payment of his costs by said complain-
ant, make return of his proceedings hereupon, on or before
the third Monday of March next, with the said sum of one
hundred dollars, or the body of the said defendant here before
the court."
On the 28th day of February, 1861, the clerk made a cer-
tified copy of this order, but not directed to any sheriff or
other person, and not running in the name of the People,
which was returned to the clerk's office on the 4th April, with
the following indorsement, to wit :
" I return this writ, served by reading the same to the
within named Jacob B. Hall, and demanded the money,
which was not paid, and cannot be made by law. March
23rd, 1861. K S. Leighton, Sheriffs. GP
On the 8th day of May, 1861, a writ of attachment in the
name of the People, to the sheriff of Scott county, was issued
by the clerk, setting forth the order authorizing its issue,
commanding the sheriff, without the pre-payment of his costs
and charges, to take the body of Jacob B. Hall, and commit
him to the common jail of his county, without bail, until he
should have paid the said sum of $100, and $4.45 costs, or
until he should have him before the court on the fourth
Monday of May.
This writ was returned on the 31st May, with the following
indorsement :
" I return this writ not served, as I cannot find the within
110 Leighton v. Hall. [April T.
Statement of the case.
named Jacob B. Hall in my county, this the 27th day of
May, 1861. N. S. Leighton, Sheriffs. 0.
By Wm. C. Davis, Dep."
On the first day of June a motion was made by Parthenia
Hall, in her case against Jacob B. Hall, for an order on New-
ell S. Leighton, sheriff of Scott county, to pay the said sum
of $104.45, for contempt in failing to bring the body of the
said Jacob B. Hall.
The court caused a copy of the motion to be served on
Newell S. Leighton, by the coroner of Scott county, and
stayed the hearing for that purpose.
On the 24th day of June, 1861, the said N. S. Leighton
showed cause in writing, under oath, against the rule, as
follows, to wit :
1. No fees were advanced to enable him to execute the
writ.
2. Jacob B. Hall was and is insolvent.
3. The execution of the writ, by delivering the body in
court, would necessarily involve an expense of from $50 to
$75, which would be an actual loss.
4. The complainant was unknown to him, and was reputed
to be insolvent.
5. When the first writ was returned, he wrote to the com-
plainant's solicitor, explaining these reasons, and proposing to
bring the body if the fees were advanced.
6. When the second writ was received, he could not find
Jacob B. Hall, who had left the county before he receipt of the
writ, without the advice or procurement of the sheriff.
With these causes, N. S. Leighton also filed, in support
thereof, the affidavits of T. F. Jerome, and N. M. Knapp,
showing that Jacob B. Hall had been hopelessly insolvent
and without credit for three years.
On these facts, the motion of complainant for decree against
Newell S. Leighton, to pay the alimony allowed the complain-
ant, was submitted to the court, and sustained.
A decree was rendered on the 16th day of March, 1863,
ordering the said Newell S. Leighton to pay, without further
1863.] Leighton v. Hall. Ill
Briefs of Counsel.
notice, into the hands of the clerk, the sum of $104.45 with
costs, and that attachment issue to enforce the order.
Leighton brings the record to this court by writ of error,
and assigns as error, that the court erred in rendering the
final decree against him to pay the provisional alimony.
Mr. W. 0. Goudy, for the plaintiff in error.
The paper sent to the plaintiff in error, dated 28th day of
February, 1861, is not a writ, did not authorize an arrest, and
if the plaintiff in error had taken the body of Jacob B. Hall,
he would have been liable for false imprisonment. This
paper is a certified copy of the order on Jacob B. Hall to pay
the provisional alimony. The order authorizes the clerk to
give the complainant a certified copy directed to the sheriff
of any county to execute, and ordered such sheriff to make
return of his proceedings thereon without requiring the pre-
payment of his fees. The certified copy sent to the plaintiff
in error was not directed to any sheriff, and, therefore, was
not a command to the plaintiff in error, to whose hands it
came, to arrest Jacob B. Hall ; it did not run in the name of
the People, as required by the constitution, and therefore was
void as a process, and he was not bound to serve it as such.
Ferris v. Crow, 5 Gilm. 100 ; Curry v. Hmman, 11 111. 420 ;
Gorton v. Frizzel, 20 111. 291.
Mr. Charles C. Bonnet, for the defendant in error, con-
tended that the court had the power to order a witness, a
juror, a suitor, or a bystander, into custody, for failing tc
observe its requirements; and that such order could be
enforced without the issue of formal process.
Nor is it necessary that the order should run in the name
of the People. Curry v. Einman, 11 111. 422.
Moreover, the objection that the order of the court for the
arrest did not run in the name of the People, cannot be taken,
for the first time, in this court.
112 Leighton v. Hall. [April T.
Opinion of the Court.
Mr. Chief Justice Caton delivered the opinion of the Court:
After a careful consideration and examination of this subject,
we have arrived at the conclusion that this decree against the
sheriff cannot be sustained, for the reason that he was not
authorized to arrest Hall, on the order, with a copy of which
he was furnished. The twenty-sixth section of the fifth article
of the constitution declares, that "All process, writs and other
proceedings, shall run in the name of ' The People of the
State of Illinois?" No such writ or other such process was
issued to the sheriff, commanding him to arrest Hall. He
was simply furnished with a copy of an order of the court,
adjudging that Hall should pay one hundred dollars to the
sheriff to whose hands a copy of the order should come, or, in
default thereof, the sheriff should arrest and detain him in
custody. The sheriff served the copy of the order on Hall,
who did not pay the money, and the sheriff so returned; but
he did not arrest Hall as the order directed. Afterwards, an
attachment issued in regular form, which did run in the name
of the People of the State of Illinois, commanding the
sheriff' to arrest Hall, which was returned non est ; and the
question is, was it his duty to arrest Hall upon the mere copy
of the order with which he was first furnished ? We think
that order did not clothe the sheriff with sufficient authority to
make the arrest. It was neither a writ, nor a process. It did
not run in the name of the People. It was simply an order
on which such process might have issued. We have a statute
which authorizes conservators of the peace to arrest for crimi-
nal offenses committed in their presence, and if they make
arrests under other circumstances, they do it at their peril,
and must take the responsibility of showing that the prisoner
has been guilty of a crime. Executive officers of a court,
may, upon a mere order of the court, detain persons who are
in the presence of the court, or who are already in custody ;
but it does not follow7 that such an order may be sent into the
country, without process, wmich will authorize an arrest. But
this first order was not in a criminal proceeding. Until it was
disobeyed by Hall, it did not furnish grounds even for a
1863.] Boyd v. Cuddeeback et au 113
Syllabus.
criminal proceeding. It was purely civil in all its features,
and the sheriff should have been furnished with such authority
as the constitution requires, before he could be required to
make the arrest. The decretal order against the sheriff must
be reversed.
Decree reversed*
John G. Boyd
v.
Nathan Cuddeebaok et al.
1. Homestead — mode of release. Where a husband and wife execute
ft mortgage upon lands to which a homestead right has attached, it is not
enough, to pass such a right, that it is expressly released in the body of
the deed ; it must appear from the certificate of acknowledgment that the
wife acknowledged that she released this particular right, freely and vol-
untarily, and without compulsion.
2. Same — against what sales protected. The original act of 1851 was
confined, in its operation, to forced sales under judicial proceedings ; but
the amendatory act of 1857, embraces not only forced judicial sales, but all
other cases or modes of alienation, involving the right to the homestead.
8. Same — to whose estate it may attach. Semble, a homestead right may
attach to lands of which the wife is the owner of the fee, the husband
having only an estate as tenant by the curtesy. *
4. Same— mortgage — excess over $1,000. Where lands to which a
homestead right has attached, are of value exceeding one thousand dollars,
a mortgage thereon will be operative and binding as to the excess, although
the homestead right may not have passed by the deed.
5. But the right of the mortgagee, in such case, to apply such excess,
must be enforced in the mode prescribed in the statute, on a foreclosure of
the mortgage, or on a judgment recovered upon the debt.
6. Chancery — homestead. If such mortgage contain a power of sale,
the homestead right in the premises not being released, a court of chancery
will interpose by injunction to restrain the mortgagee from making sale of
the premises under the power contained in the mortgage.
7. Mortgage — homestead not released. Quo3re,&a to the rights of a
mortgagee in the fee of lands which constitute the homestead of the mort-
gagor, when the right of homestead does not pass.
* See also Young and Wife v. Graff, 38 III. 39.
15 — 3 1st III.
114: Boyd v. Cudderback et al. [April T.
Statement of the case.
Appeal from the County Court of the county of La Salle ;
the Hon. P. K. Leland, Judge, presiding.
On the 9th day of June, 1857, Nathan Cudderback, and
Catharine, his wife, executed and delivered to Alson Ward, a
mortgage upon certain lands, situated in the county of La
Salle, to secure the payment of a certain promissory note
therein described. The deed authorized the mortgagee, or his
assigns, to make sale of the premises, upon default made in
the payment of the note, and contained the following clause
of release :
"The said parties of the first part hereby waive, release
and transfer all their right to any and every homestead exemp-
tion under the laws of this State, to the said party of the
second part, his heirs and assigns, together with all and singular
the hereditaments and appurtenances thereunto belonging."
The officer taking the acknowledgment, certified the same
as follows :
"STATE OF ILLINOIS,) _ ,.„„,-, „x . -~
la salle county, J On this 13th day ot June, A. L>.
1857, personally appeared before me, notary public in and for
the town of Ottawa, in said county and State, Nathan
Cudderback, and Catharine, his wife, to me personally known
to be the persons described in, and who executed the within
mortgage deed, and acknowledged that they had freely
executed the same for the uses and purposes therein expressed ;
and the said Catharine Cudderback, after I had made her
acquainted with, and explained to her the contents of the said
mortgage deed, on an examination separate and apart from her
said husband, acknowledged the said mortgage deed to be
her free act and deed, and that she executed the same freely,
voluntarily, and without the compulsion of her said husband,
and she does not wish to retract the same.
"Given under my hand," etc.
Ward, the payee and mortgagee, having assigned the note
and mortgage to John GL Boyd, the appellant, and the note
having become due, and remaining unpaid, Boyd was about
to proceed to sell the mortgaged premises under the powei of
1863.] 13oyd v. Cudderback et ah 115
Briefs of Counsel.
sale contained in the mortgage, when Cudderback and his
wife exhibited their bill in chancery in the court below, set-
ting up the mortgage, and the assignment of the note secured
thereby, to Boyd, and alleged that Boyd had given notice of
his intention to sell the premises to satisfy the debt.
The bill alleged that the note was given for money loaned
by Ward to Cudderback, and not for the purchase-money, or
for improvements upon the premises.
It was further alleged in the bill, the fee simple title to
the premises was, at the time of the execution and delivery of
the mortgage, in the said Catharine Cudderback, and that
said Nathan was only a tenant by the curtesy in the premises.
That said Nathan, with his wife and children, did, at the
time of making the mortgage, reside upon the premises, and
continued so to reside up to the time of exhibiting this bill,
and that the premises were of value, not exceeding one thou-
sand dollars. That the complainants claimed the same as a
homestead, and did not release the same by the mortgage.
The bill prayed an injunction, restraining Boyd, his agents or
attorneys, from selling the premises, or in any manner inter-
fering therewith, until the further order of the court. The
injunction was granted in pursuance of the prayer in the bill;
and the cause coming on finally to be heard upon a demurrer
to the bill, the County Court overruled the demurrer, and the
defendant, Boyd, declining to answer further, a decree was
rendered in the court below, perpetuating the injunction.
From that decree, Boyd prayed this appeal ; and in his
assignment of errors, questions its correctness.
Messrs. Grover, Cook & Campbell, for the appellant.
1. The decree was erroneous in making perpetual the
injunction restraining Boyd, the appellant, from selling the
premises upon the mortgage, for the homestead right must, at
some future day, terminate, and then, Boyd would have the
right to sell upon the mortgage.
2. In the course of a few years the land may increase in
value, and be worth more than $1,000, and then said appel«
116 Boyd v. Cudderback et aL [April T.
Briefs of Counsel.
lant would certainly have the right to tender the appellees
the sum of $1,000, and sell the land.
3. The premises were owned by the wife, while the hus-
band was the head of the family, residing with the same, so
that the ownership of the land was not in the same person
who was the head of the family, residing on it. Therefore
there was no homestead in the premises.
4. If there was a homestead, it was fully released by the
mortgage and acknowledgment.
The release is contained in the body of the deed, and is
subscribed by both husband and wife.
The deed is duly acknowledged, and the acknowledgment
cannot be true unless the officer taking the acknowledgment
did fully explain to the wife her rights under the homestead
act.
5. There was no occasion for the interposition of a court
of chancery in this case at all.
Because no injury would have been done to the appellees
if the sale had taken place.
Suppose Boyd had sold the land upon his mortgage, and
made a deed of the same to the purchaser, this deed would
not have conveyed the homestead unless the mortgage itself
had conveyed it.
An action of ejectment could not prevail as against the
homestead.
The action of the court would not prevent a multiplicity of
suits, for the mortgagee, with condition broken, can maintain
ejectment.
Notwithstanding the homestead right, if there was one, the
mortgagee had some interest in the premises, and the right to
foreclose the equity of redemption as to that interest by a sale.
Messrs. Gray, Avery & Bushnell, for the appellees, in-
sisted that the decree of the court below was not "perpetual "
in its effect, but can only be considered as a decree to continue
in force so long as the appellee's right of homestead continues,
and the moment such right determines under the statute, the
decree will become inoperative. Boyd is at liberty, at any
1863.] Boyd v. Cudderback ei al, 117
Opinion of the Court.
time, to tender to the mortgagors the $1,000, and have the
land sold. The decree only enjoins him until he is willing
and ready to comply with the requirements of the statute.
The fact that the premises belonged to the wife, cannot
affect the right of homestead therein.
It was insisted, upon the authority of the case of Vcmzant
v. Vansant, 23 111. 536, that there was no relinquishment or
waiver of the homestead rights by the wife, in the acknowl-
edgment of the instrument, and there could be none in the
body of this conveyance, whatever its language. In the case
at bar, the acknowledgment is in the usual form, and the
court, (Breese, Justice), in the case referred to, say such an
acknowledgment does not, in any way or manner, convey
away the homestead right.
The officer taking the acknowledgment should have in-
formed the wife of the nature and object of the homestead
act, and of her rights under the same. This was not done.
The counsel for the appellees also cited the case: Kitchell v.
Burgwin% 21 111. 40.
Mr. Justice Walker delivered the opinion of the Court:
This record presents the question, whether the execution
of the mortgage was sufficient to release the right to claim
the premises as a homestead. This depends upon whether
the acknowledgment on the part of the wife is in accordance
with the law. By the original act, adopted in 1851, it was
not necessary that the wife should join in the release, to
render it valid. By the amendatory act, adopted in 1857,
(Scates' Comp. 577,) it is declared that the words " and his
wife if he have one," shall be inserted after the words
" subscribed by such householder," in the original act. The
law as it now stands, requires that the release shall be in
writing, subscribed by the householder and his wife if he have
one, and acknowledged in the mode in which conveyances of
real estate are required to be acknowledged. In the case of
Patterson v. Kreig, 29 111. 514, it was held, that it is neces-
118 Boyd v. Cudderback et al. [April T.
Opinion of the Court.
sary, that the wife shall join in any deed alienating the
homestead, under this amendatory act. That act declares
that it is the object of the statute, to require in all cases, the
signature and the acknowledgment of the wife, as a condition
to the alienation of the homestead.
Then the question arises as to what the acknowledgment
must contain to be operative as a release of the right. In
relinquishing dower, the wife must acknowledge, separate and
apart from her husband, and after being fully informed as to
the contents and effect of the deed, that she relinquishes her
dower freely, voluntarily, and without the compulsion of her
husband. So in conveying the wife's estate, she must ac-
knowledge that she executed the deed freely and voluntarily,
and does not wish to retract. And in each of these cases,
the officer must certify as to what the wife did acknowledge
after he had examined her separate and apart from her hus-
band. It is the conformity of the acknowledgment to the
statute, which is operative to pass the wife's title to her
own real estate, or to relinquish her dower in that of the
husband.
In conveying her estate, if she acknowledged that she re-
linquished her dower, it would hardly be held sufficient.
Because that would not be the estate intended to be conveyed,
and she must acknowledge that she intends to and does con-
vey that estate. In the certificate of acknowledgment to this
mortgage, the wife only relinquishes her fee simple estate in
the premises. If the mortgaged premises belonged to her
husband, then she had dower in the premises, and she also
had, under the statute, a right to claim it as a homestead.
The latter right she has not acknowledged that she released,
but it is only her right to the fee. This is not sufficient, as,
to be effective to bind her homestead right, it should appear
from the certificate, that she acknowledged that she released
it freely and voluntarily, without compulsion. This was the
construction given to the act in the case of Vanzant v. Van-
zant, 23 111. 536.
It is, however, urged, that the law only relates to forced
-.ales under a judgment, order or decree of a court. This is
1863.] Boyd v. Cuddekback et at. ll&
Opinion of the Court.
no doubt true of the act as it stood before the amendment of
1857, which declares that it is the trne object of the act to
require, in all cases, the signature and acknowledgment of the
wife as conditions to the alienation of the homestead. This
amendment is broader than the original act, as it embraces all
cases of alienation, whilst the former was confined to forced
sales under judicial proceedings. Thus it will be perceived,
that in adopting such comprehensive language in the amenda-
tory act, that the design was something more than merely
to require the wife to join in the execution of the release.
It seems to have been to give her the right to render the
provisions of the act operative not only as to forced judicial
sales, but as to all others, involving the right to the homestead.
The legislature no doubt used the term " alienation " in
its ordinary and legal sense. The word is defined by lexi-
cographers to be, an act whereby one man transfers the prop-
erty and possession of lands, tenements or other things to
another person. Then the alienation of the homestead, is the
transfer of the title and the possession, and can only be made
in the mode prescribed by the statute. Any failure to comply
with the conditions there imposed fails to affect the right to
the homestead. Nor can it become any more operative as a
deed of trust, a mortgage with a power of sale, or conveyance
of the land, to relinquish the right to insist upon the benefits
of the statute, than a want of compliance with the act in
simply releasing the right, without attempting to incumber or
convey the property.
The amendatory act was manifestly adopted to protect the
wife and family in the enjoyment of the homestead, against
both the acts of the husband and his creditors. It was in-
tended that no act of his or theirs, until she did what the
statute has required, should deprive her and the family of
a retreat from the storms of adversity — a home. Whatever
may be our opinion as to the policy of the statute, we must
carry out its provisions so as to effectuate the intention of the
law-makers. If it is found to operate with inconvenience, or to
produce hardship, it is for the legislature to apply the correc-
tive. "We can only give effect to the law as it is adopted.
120 Davidson v. Waldron et al. [April T.
Syllabus.
Whatever rights, if any, the mortgagee may have acquired
by this instrument, it confers no power to sell the home-
stead during the lifetime of the wife, if she shall occupy it
as a residence. In the event of her death, or if the family
shall cease to occupy it as a residence, it will then be time to
determine what rights the mortgagee has acquired.* The act
only applies to the homestead to the value of one thousand
dollars. If this property is of more than that value, the sur-
plus would be subject *to be applied on the mortgage debt, in
the mode prescribed in the statute, on a foreclosure of the
mortgage, or on a judgment recovered on the debt, unless
other liens had a priority to this mortgage or such a judgment.
As to the surplus, the mortgage is no doubt operative and
binding. Inasmuch as the mortgage was inoperative to
authorize the sale of the land embraced in it, because of
its being the homestead, the decree of the court below must
be affirmed.
Decree affirmed.
James W. Davidson
v.
Zaohariah K. Waldron et al.
1. Tboveb — title of plaintiff. In an action of trover and conversion, as
in an action of ejectment, the plaintiff must recover on the strength of his
own title, without regard to the weakness of that of his adversary.
2. Trover is a possessory action, and the plaintiff must show that he has
either a special or a general property in the thing converted, and the right
to its possession.
3. A valid levy of an execution upon personalty, will give the officer
such a property and right of possession therein as will enable him to
maintain an action of trover.
4. Levy— what constitutes— duty of officer. To constitute a valid levy
upon personal property, it must be within the power and control of the offi-
cer when the levy is made, and he must take it into his possession within a
reasonable time thereafter, and in such an open, public and unequivocal
* See the case of Young and wife v. Grajf, 28 III. 29, where premises were conveyed
by deed of trust, and upon foreclosure in equity, a sale of the premises was decreed,
subject to the homestead right of the grantors, that right not having been released
In the deed.
1863.] Davidson v. "Waldron et al. 121
Syllabus.
manner, as to apprise everybody that it has been taken in execution. He
must so deal with the property, in order to constitute a good levy, as, with-
out the protection of the execution, his acts would make him a trespasser,
5. A levy should be indorsed upon the execution, and the indorsement
should show that the levy was made within the life of the writ; and it
should be distinct and specific.
6. Where the species of property is such that actual possession of it
cannot be taken, as a growing crop, it would be prudential in the officer to
call some one or more of the neighborhood, to witness that he had taken it
in execution, and he should indorse the fact on the writ.
7. So, as in this case, where an officer has levied upon a large lot of
lumber, he may be justified in suffering it to remain where he found it.
But he should exercise some act over it, such as would make him, without
the protection of the writ, a trespasser. Some public, open, unequivocal
act should be done that would lead all persons to know that the property
was no longer in the custody of its former owner, but in that of the law.
8. An indorsement upon an execution made after the return day, that
it had been theretofore " levied on 175,000 feet of lumber, at Arlington," is
insufficient. The statement of the levy is too indefinite and uncertain to
give the officer a right of possession or property in the lumber. It does
not show when it was levied, whether in the lifetime of the writ, or after
it had expired, nor upon what lumber, or kind or description, so that others
interested may be notified of a change of possession by means of a levy.
9. The law will not sustain a levy which is only colorable, and designed
to shield the property from the claims of other parties.
10. Nor can a levy create a lien separate from the possession of the
property levied upon.
11. If a creditor seize the goods of a debtor under an execution, and
suffers them to remain in the possession of the debtor, for an unreasonable
time, the execution will be deemed fraudulent and void, as against a sub-
sequent execution.
12. But the delay in taking possession of the property, to have that
effect, must be shown to have been by the consent of the creditor, either
expressly or impliedly given.
13. Sheriff — neglect to make levy. If the officer, in whose hands an
execution is placed, shall, without the consent of the creditor, so delay
making a proper levy, that the rights of third parties intervene, the
creditor has his remedy against the officer.
14. Conflict of jurisdiction — State and Federal Courts. In an action
of trover brought in a State court by a United States marshal to recover
the possession of personal property which he claims by virtue of a levy
made by him under an execution issued out of a Circuit Court of the
United States, it is competent for the State court to decide upon the valid
ity of such levy.
16_31st III.
122 Davidson v. Waldron et al. [April T.
Statement of the case.
15. So in ejectment brought in a State court, where a party claims title
by virtue of a sale of the premises under an execution issued out of the
District or Circuit Court of the United States, the validity of the execution,
and of the proceedings under it, are a fair subject of investigation and
adjudication by the State court.
16. Growing crop — rights of purchaser under execution. A purchaser
of a growing crop, under execution, has a right to enter upon the premises
to gather the crop.
Writ of Error to the Circuit Court of Bureau county;
the Hon. Madison E. Hollister, Judge, presiding.
This was an action of trover, brought by James W. David-
son against Francis B. Cooley, Elisha S. Wadsworth, John Y.
Farwell, Zachariah K. Waldron, Marshall Field, and Charles
W. Wilcox, to recover for certain lumber, boards, scantling,
planks and lath, of the value of $1,200, of which the plaintiff
alleged he was lawfully possessed on a day prior to the com-
mencement of the suit, and which, on that day, he casually
lost out of his possession, and that they came into the posses-
sion of the defendants, by finding, the defendants knowing
the same to be the plaintiff's property, but contriving and
intending to injure the plaintiff, refused to deliver the same
to him, although often requested so to do, but converted and
disposed of the same to their own use, to the plaintiff's dam-
age of $1,200.
The defendants pleaded, first, not guilty; and second, a
special plea, setting up that George C. Wilder recovered two
certain judgments in the Circuit Court of Cook county, for
certain specified amounts, against one John C. Gibson; and
that the defendants, Cooley, Wadsworth and Farwell, had also
recovered a certain judgment against said Gibson, in the
Cook County Court of Common Pleas ; that executions hav-
ing been issued upon said judgments, and coming to the
hands of said defendant Waldron, as sheriff of Bureau county,
were by him levied upon the lumber, boards, plank, scant-
ling and lath mentioned in the plaintiff's declaration, as the
property of the said John C. Gibson ; that by virtue of the
said levies, and the liens acquired by means thereof, the said
1 863.] Davidson v. Waldron et al. 123
Statement of the case.
sheriff advertised and sold the property mentioned, to satisfy
said judgments ; that at the time of making said levies, the
said John C. Gibson was in possession of, and engaged in
selling and disposing of said lumber, boards, etc., in his cus-
tomary and usual manner, at Arlington, in said Bureau
county, and had been in possession of, and so engaged, for a
long time prior to said levies ; that the lumber, etc., was liable
to be so levied on and sold under said writs to satisfy said
judgments, to which the proceeds were properly applied ;
that said Cooley, Wadsworth and Farwell, and said defend-
ants, Field and Wilcox, as their agents, directed said sheriff
to so levy on and take said lumber, etc, under said writs,
which were the same trespasses complained of in the decla-
ration. That after the levies were made, said Field and Wil-
cox acted under the direction of said sheriff, and as his clerks
in the sale of the property.
The replication to the special plea denied the recovery of
the judgments mentioned therein, and averred that at the
times when, etc., in the plea mentioned, said Gibson was not
in possession of said property, and that the same was not
liable to be levied on and sold as stated in the plea.
The issues were tried before the court, by agreement, with-
out the intervention of a jury.
The plaintiff, Davidson, based his claim to a right of
recovery in the action, upon a special property and right of
possession in the lumber, which he claimed to have acquired
by virtue of a levy previously made thereon by him as
United States marshal, through his deputy, Matthews, under
a writ of fieri facias, which was issued out of the Circuit
Court of the United States for the Northern District of
Illinois, upon a judgment rendered therein in favor of
David B. Jewett against the said Gibson.
The principal question presented by the record, touching
the right of the plaintiff below to recover, arises out of the
alleged invalidity, as insisted upon by the defendants, of the
levy claimed to have been made upon the property by the
marshal, Davidson.
124 Davidson v. Waldkon et al. [April T,
"Briefs of Counsel.
The evidence having reference to the character of that
levy, is sufficiently set out in the opinion of the Court.
Another question arises in the case, as to the power of the
State court to inquire into, and decide upon the validity of a
levy of an execution which was issued out of a Circuit
Court of the United States.
The finding and judgment in the court below, were in
favor of the defendants ; upon which the plaintiff, Davidson,
prosecuted this writ of error.
Messrs. E. S. Smith, and E. A. Storks, for the plaintiff in
error.
First. The property levied upon by the plaintiff in error,
as United States marshal, was in the custody of the law, and
was not liable to be taken by another execution in the hands
of a different officer, acting under another jurisdiction. And
herein —
1. The property was in the custody of the law. Taylor v.
Caryl, 20 How. U. S. 595 ; Ludden v. Zeavitt, 9 Mass. 104 ;
Brashear v. West, 7 Peters, 608.
2. The property thus levied upon by the plaintiff in error,
was not liable to be taken on another execution in the hands
of a different officer, acting under another jurisdiction.
Hagan v. Lucas, 10 Peters, 400 ; Peck v. Jenness, 7 How.
U. S. 612 ; Taylor v. Caryl, 20 How. U. S. 583 ; Freeman
v. Howe, 24 How. U. S. 455 — 459 ; Brown v. Clarke, 4 How.
U. S. 4; The Oliver Jordan, 2 Curtis, 415 ; Fx parte Room-
son, 6 McLean, 356 ; Pulian v. Osborn, 17 How. U. S. 474 ;
United States v. Booth, 21 How. 507.
3. The general rule is settled, beyond all controversy, that
State courts cannot enjoin nor interfere with proceedings in
the United States courts ; nor the latter in the former courts.
Act of Congress, March 2, 1793, ch. 22, sec. 5 ; Story's Eq.
Jurisp., vol. 2, p. 241, sec. 900; Story on the Const., sees.
1757 — 1759 ; Kent's Commentaries, vol. 1, page 412 ; Biggs
v. Walcott, 4 Cranch, 179 ; Kitfridge v. Emerson, 13 New
Hamp. 227; McFwiv. Voorhies, 7 Cranch, 279; Cruih-
1863.] Davidson v. Waldron etal. 125
Briefs of Counsel.
shanks v. Robarts, 6 Madd. 104 ; Mead v. Merritt, 2 Paige
404, 405 ; Bicknell v. Fields 8 Paige, 440 ; United States v
French, 1 Gall. 1 ; Phelan v. Smith, 8 Cal. 520 ; City Bank
of N. T. v. Skelton, 2 Blatch. C. C. 14; Ex parte Cabrera, 1
Wash. 0. C. 232 ; Dudley's Case, 1 Perm. Law. Jour. 302 ;
Osborn v. Bank of U. S, 9 Wheat. 738.
4. The word "proceedings" as used in the above rule,
includes the sale of a sheriff under an execution, as also the
levy made by him upon property by virtue of the execution.
Way man v. Southard, 10 Wheat. 1 ; Duncan v. Dart, 1
How. 304 ; Beers v. Haughton, 9 Pet. 329 ; United States v.
Knight, 14 Pet. 329 ; Amis v. Smith, 16 Pet. 312.
5. This rule is founded not only upon comity, but upon
public necessity. Freeman v. How, 24 How. 455-459 ;
Mead v. Merritt, 2 Paige, 404 ; Peck v. Jennes, 7 How.
625.
6. The fact that the plaintiff in error, in this case, sought
to enforce the rights secured by his levy in the State court,
cannot affect the application of this rule. Having made the
first levy, the State courts cannot inquire into its regularity or
validity, but must remit those questions to the tribunal from
which the process issued, and could, with no greater propri-
ety, defeat an attempt to assert such right on the ground that
the execution was dormant, than it could enjoin the marshal
from proceeding to sell under such an execution for the same
reason.
Second. The execution held by the marshal, and by virtue
of which he levied upon the property of Gibson, was not, by
reason of the delay in selling the property thus levied upon,
dormant as to these defendants, nor as to anv other creditors
of Gibson. And herein —
1. The question as to whether an execution is, or is not,
dormant, is one of intent ; and it must appear that the plain
tiffs in the execution, intended by it to hinder, delay, or de-
fraud other creditors, and that it was levied to cover the goods
merely, or create a lien separate from the possession. Scanty
v. Worthington, 4 Kawle, 155; Matthews v. Warne, 6 Halst.
310; Bac. Abr., Fraud "A"; Bradley v. Windham, 1
Wills, 44.
126 Davidson v. Waldron et al. [April T.
Briefs of Counsel.
2. And hence it is that this fraudulent intent must be
established by some act of the plaintiffs in the execution. A
delay in making sale is merely evidence of an intent to cover
the property, when such delay proceeds from the directions of,
or is caused by, the plaintiffs' interference with the officer in
the execution of the writ. Herkimer County Bank v. .Brown,
6 Hill, 232 ; Russell v. Gills, 5 Cowen, 390 ; Butler v. May-
nard, 11 Wend. 552 ; Rew v. Barler, 3 Cowen, 279 ; Ben-
jamin v. Smith, 12 Wend. 404; Browrts Appeal, 26 Penn.
State, 402 ; Doe v. Ingersoll, 11 Smedes & M. 250 ; Houston
v. Sutton, 3 Harring. 37 ; Hickman v. Hickman, 4 Harring.
484; Cumberland Bank v. Hanx, 4 Harr. (N. J.) 168;
Power v. Van Bur en, 7 Cow. 560 ; Baton v. Westervelt, 13
N. Y. Leg. Obs. 7 ; Ethridge v. Edwards, 1 Swan, 426 ; Cox
v. McDougal, 2 Yeates, 434.
3. In this case the delay in making sale proceeded from
no act or directions of the plaintiffs in the execution. The
delay, therefore, not proceeding from any act of the plaintiffs,
nor with their knowledge, no presumption could be indulged
in against them.
4. All presumptions of fraudulent intent or purpose upon
the part of the plaintiffs in the execution, are met and over-
thrown by the facts in the case. At least $14,000 worth of
personal property was left exposed to any other process, and
which was not levied upon by the plaintiff in error. There
could have been no intent to cover the property of the debtor,
for but a small portion of it was levied upon.
5. The lumber levied upon was left in the custody of a
third person, appointed by the marshal. The acts of the
custodian in permitting the defendant in the execution to in-
terfere with the property, could neither affect the rights of the
marshal, nor the plaintiffs in the execution. He would simply
make himself liable to them in damages.
Mr. C. M. Hawley, for the defendants in error.
In trover, the plaintiff's right to recover depends upon the
strength of his own title, and not upon the weakness of his
1863.] Davidson v. Waldron et al. 127
Briefs of Counsel.
adversary. In this action, property in another io a good
plea. Duncan v. Spear, 11 Wend. 54.
To sustain this action, Davidson, the plaint iff, should have
shown a valid judgment against John C. Gibson, a levy, and
a continual possession of the property levied upon. Earl v.
Camp, 16 Wend. 565; Clarke v. Clarke, 6 Esp. K. 61;
Oroker's Sheriff', sec. 811.
The plaintiff cannot claim and maintain special property,
as marshal of the United States for the Northern District of
Illinois, by virtue of a judgment, execution and levy, without
showing his authority, and that he was duly appointed and
qualified. 2 U. S. Statutes, p. 372, sec. 1 ; Fitjhtmaster v.
Beasley, 7 J. J. Marsh. 419 ; Schermerhom v. Van Valken-
burgh, 11 Johns. 529.
H. M. Matthews was neither marshal, nor deputy marshal ;
nor did he pretend to be ; nor was he deputy marshal de facto.
To constitute a person an officer de facto, a mere claim to
being a public officer is not sufficient ; there must be some
color of right to the office, or an acquiescence on the part of
the public for such a length of time as will authorize the pre-
sumption of at least a colorable election or appointment.
Wilcox v. Smith, 5 Wend. 231 ; 1 Greenleaf Ev., p. 106,
sec. 83.
Matthews was a stranger : no one knew him or had heard
of him as deputy U. S. marshal. An under sheriff or deputy,
being recognized by statute as a public officer, it will be suffi-
cient, prima facie, to show that he acted publicly and noto-
riously in that character. But if he was only a private agent
or servant of the sheriff, other proof is necessary. 2 Greenlf.
Ev., sec. 582.
The levy was invalid for several reasons: 1st, Matthews
never indorsed any levy ; 2nd, the indorsement made does not
show when the levy was made, not even that it was made in the
life of the execution, nor upon what particular lumber it was
made ; 3rd, it appears that the indorsement of the levy was
made by Davidson himself, after the life of the execution,
and after he went out of office, if, indeed, he was ever in
office at all ; 4th, no credit having been entered for the $700,
128 Davidson v. Waldkon et al. [April T.
Briefs of Counsel.
which was paid before the execution was issued, was evidence
of an intention to perpetrate a fraud upon other creditors.
But no levy was in fact made; the attempted levy was
a mere contingent or conditional levy. A levy to be effectual,
must be certain — positive — absolute.
Such a levy cannot be sustained as against other execution
creditors, according to the case of Minor v. Herriford et al.,
25 111. 346, which is sustained in Brown v. Cook, 9 Johns. 361 ;
Cornell v. Cook, 7 Cowan, 310 ; Corlies v. Stanbridge, 5 Kawle,
286 ; Commonwealth v. Strauback, 3 Kawle, 341 ; Hotchlciss
v. Mc Victor, 12 Johns. 403.
If there ever was a levy at all, it had become dormant
before the sheriff made his levies, by reason of the delay on
the part of the plaintiffs in the execution in the marshal's
hands. Boss v. Webber, 26 111. 223; 1 Vern. 245; 6 Hill,
232 ; 2 T. R. 596 ; Bussell v. Gibbs, 5 Co wen, 391 ; Butler
v. Maynard, 11 Wend. 552.
No notice whatever was given to the sheriff, at any time, of
a levy having been previously made. Shirley v. Phillips
et al., 17 111. 471 ; Martin v. Dry den, 1 Gilm. 217 ; Burnell
v. Bobertson, 5 Gilm. 289 ; Carter v. Willard, 19 Pick. 1 ;
Shumway v. Bitter, 7 Pick. 56.
To maintain trover, the officer must have actual possession,
and have taken an inventory. Loyd v. Wyehqff, 6 Halst.
218 ; Kellogg v. Griffin, 17 Johns. 276.
Messrs. E. S. Smith, and E. A. Stores, for the plaintiff
in error, in reply.
The authorities cited by the defendants in error are not in
point.
In Knower v. Barnard, 5 Hill, 377, the property levied
upon was left in the possession of the defendant, and the
sheriff was directed by the plaintiff's attorney not to sell on
the execution. In Kimball v. Manger, 2 Hill, 364, the plain-
tiff directed the sheriff not to proceed to sell unless forced to
do so. Benjamin v. Smith, 4 "Wend. 336, is an authority
against the defendants in error, for in that case the court say,
1863.] Davidson v. Waldron et al. 129
Opinion of the Court.
" The mere delay of the officer, without countenance or
direction from the plaintiff in the execution, will not render
the execution dormant." In Hickoch v. Coates. 2 Wend. 419,
the plaintiff in the execution ordered the officer to suspend
further proceedings till he gave further directions. In Kel-
logg v. Griffin, 14 Johns. 573, the plaintiff's attorney gave
instructions to the sheriff to make a levy, but to do nothing
until ordered. In Minor v. Herriford, 25 111. 346, this court
simply hold, that in order to make a levy, the sheriff must so
deal with the property, as without the protection of the writ
his acts would make him a trespasser ; and Boss v. Weber, 26
111. 223, is directly against the defendants in error, for this
court there held, that without an agreement for delay, or
instructions to that effect, the execution will not, by reason of
the delay, be rendered dormant.
That there were no agreements, instructions or directions
for delay in this case, is affirmatively shown.
Mr. Justice Bkeese delivered the opinion of the Court:
In an action of trover and conversion, as in an action of
ejectment, the plaintiff must recover on the strength of his
own title, without regard to the weakness of that of his
adversary. Like that, this is a possessory action, and the
plaintiff must show he has either a special or a general prop-
erty in the thing converted, and the right to its possession.
This right, the plaintiff in this action claims he had, by
virtue of a certain writ of fieri facias which he had duly
levied on the property. He claims by force of the levy, and
if the levy he sets up was a valid one, he may have estab-
lished his right.
The courts of Great Britain, and of this country, have
entertained different notions as to what is necessary to consti-
tute a valid levy of an execution. We do not deem it neces-
sary to state these points of difference, or go into an exam-
ination of the subject in extenso, inasmuch as this court has
declared what shall be a valid levy.
In the case of Minor v. Herriford et al., 25 111. 348, it was
IT— 31st III.
130 Davidson v. Waldron et al. [April T,
Opinion of the Court.
held, to constitute a valid levy, the property must be within
the power and control of the officer when it is made, and he
must take it into his possession in a reasonable time thereafter,
and in such an open, public and unequivocal manner, as to
apprise everybody that it has been taken in execution. He
must so deal with the property, in order to constitute a good
levy, as, without the protection of the execution, his acts
would make him a trespasser. This has been followed by the
case of Havely v. Zowry, 30 111. 446.
Again, in the case of Douglas et al. v. Whitney, 28 111. 366,
this court intimated that a levy should be indorsed on the
fi.fa., and be distinct and specific.
We believe all courts hold a levy should be indorsed on
the^. fa., and that the property should be in the view and
under the control of the officer at the time he makes it, and
he should, in a reasonable time after the levy is made, take
possession of the property.
This is to prevent frauds, and to require that the indicium
of ownership shall be where the title is. If property levied
upon, was not taken into the possession of the officer in a
reasonable time after the levy, or the levy should not be open
and notorious, means would be afforded the defendant to obtain
credit on the faith of the property in his possession, of which
he is, to all appearance, the real owner. There is a species
of personal property, of which, at the time of a levy, actual
possession cannot be taken, as a growing crop. In such a
case, it would be prudential in the officer to call some one or
more of the neighborhood, to witness he had taken it in
execution, and he should indorse the fact on the writ. The
purchaser of such a chattel, would have the right to enter
upon the premises and gather the crop. Most kinds of per-
sonal property can be easily handled, and moved from place
to place, whilst others are ponderous, and their removal
attended with expense and trouble. This may be predicated
of the lumber in controversy, and which might justify an
officer making a levy upon it, to suffer it to remain where he
found it. But he should exercise some act over it, as would
make him, without the protection of the writ, a trespasser.
1863.] Davidson v. Waldron et at. 131
Opinion of the Court.
Some public, open, unequivocal act should be done that would
lead all persons to know the law claimed control over it, and
that the property was no longer in the custody of the former
owner, but in that of the law.
To establish a levy on this lumber, the owner, Gibson, and
his employee, Randall, were examined. Gibson states he was
called on by Matthews, who had the execution against him
— a paper, which he said was an execution — that he de-
manded payment, and he, Gibson, turned out the lumber to
him on it. Matthews placed it in Randall's care as custodian.
He designated and separated the lumber levied on from other
lumber in the yard. He said he was deputy marshal under
Davidson ; he levied on about one hundred thousand feet of
lumber, including shingles and lath. The marshal separated
and marked out the lumber in the yard from the other
lumber, and advertised for sale afterwards; does not know
what became of the deputy marshal who made the levy, and
cannot say he saw the marshal or deputy on the day he was
to sell. On his cross-examination, he said, when the marshal
levied, he asked witness who was a proper person to put in
charge of the lumber, and he recommended Randall. Ran-
dall was in his employ. The lumber was turned out to him,
and he levied on it. Matthews placed the lumber in Ran-
dall's charge, and told him to take charge of it; after that,
witness had no charge of the lumber, and never sold any
of this lumber after that, nor any knowledge of any of it
being sold by Randall or anybody ; does not know that the
proceeds of the lumber came into his store ; kept no lumber
account ; all his accounts were kept together. The lumber
was on the south side of the plank road when the marshal
levied on it ; had three or four hundred thousand feet in the
yard at the time.
Randall states that he knows Matthews ; that he came to
Arlington on the 18th of November, 1857 ; he had somo
papers in his hands, and said he was H. M. Matthews, and
was Deputy United States Marshal, and had made a levy on
some lumber in Gibson's lumber yard belonging to Gibson,
and wished witness to take charge of the lumber for him ;
132 Davidson v. Waldeon ei al. [April T.
Opinion of the Court,
was introduced to the marshal by Gibson ; the marshal made
a division of the lumber yard. There was a certain telegraph
pole in the yard ; the lumber that lay east between this pole
and the plank road, was the lumber levied on. The lumber
west of this pole he did not levy on, and witness was to sell
it as usual. The marshal was to go to Chicago, and there
write witness what arrangement was to be made with regard
to the lumber he had levied upon ; if he did not write and
let witness know what arrangement was made, then witness
was to go on and sell the lumber as he had been doing. He
did not write ; got no word from him ; went on and sold part
of the lumber as witness had been doing. In April, 1858,
witness removed this lumber to make room for a load that had
arrived by the cars for one McCrady, about 80,000 feet of
which was sold to Gibson ; they went on and retailed the Mc-
Crady lumber to different persons, until the sheriff came and
levied upon all the lumber remaining in the yard, including
the lumber levied on by the marshal. After that there was
no more lumber sold until the sheriff sold it. He further
says, it was part of the arrangement made with the marshal,
as he sold lumber he was to pay it (the proceeds) over to
Gibson ; that he had sold about 30,000 feet, and had paid the
money over to Gibson. On his cross-examination, he says, he
waited three or four months to hear from the marshal before
he sold any of the lumber. The marshal said if he did or did
not write, he could not say which, witness was to sell the
lumber, but was to pay the money to Gibson ; he said the
money might go to pay the judgment execution. He forgets
whether the marshal told him to sell if he did or did not
write. He accounted for what he sold, and Gibson paid him
until first of April, 1858. He obeyed the marshal as he
imderstood him. There was no inventory of the lumber
taken by the marshal or by witness, and none directed to be
taken.
This is the substance of all the testimony going to prove a
levy, and it falls far short of the requirements necessary to
make a valid levy. Admitting the person having the papers
was an officer, and one of them was an execution, of neither
1863.] Davidson v. Waldron et al. 133
Opinion of the Court.
of which is there any proof, there is no proof of an actual
levy. So far as the debtor himself is concerned, the levy
may be good, but we are trying the question with reference
to the rights of third persons, in view of the rule established
by this court in Minor v. Herriford, before cited. The lumber
was in view of the officer, though there is no proof he looked
at it, and being out in the open yard, was under his power
and control for the moment, but he did no act, and made no
declaration, by which other interested parties or the public,
might know he had seized the lumber on an execution. On
the contrary, three witnesses residing within a few rods of the
lumber yard, state that they never heard of the levy by
the marshal, and that Gibson, during and up to the time of
the levy by the defendant Waldron, was in the possession of
the lumber and engaged in selling it as usual at retail. The
division of the lumber, by the telegraph pole and plank road,
was a mere mental act of the parties. There was no actual
division or separation of one portion of the lumber from
another, or any public declaration, that all the lumber east of
a certain telegraph pola and between it and the plank road
was taken in execution. The officer, if he was one, did no
act towards the lumber that would make him a trespasser if
he had no writ. This is an essential criterion of a levy, as we
have said. Nor did the officer indorse any levy on the exe-
cution in its lifetime. It appears, that after the expiration of
the term of office of the marshal, and eleven months and
twenty-one days after the alleged levy, that officer returned
the execution with this indorsement : " This writ came to hand
November 13, 1857, at 12 o'clock, m. James W. Davidson,
by H. M. Matthews. This execution is returned by order of
plaintiffs attorney, being heretofore levied on 175,000 feet of
lumber at Arlington, in the Northern District of Illinois, also
on (a certain tract of land, describing it, turned out by James
C. Gibson as his property), all of which was afterwards, to wit,
on the 6th day of September, 1858, advertised by me for sale,
but there was no sale of either the said lumber or land, be-
cause prior to the day of sale the said lumber had been sold
or disposed of by said Gibson, or by some other person, and
134 Davidson v. Waldkon et al. [April T,
Opinion of the Court.
by an examination of the records, etc., it appears that Gibson
had no title to the land above described. This execution is
therefore returned by order of plaintiff's attorney, without sale,
and unsatisfied, November 3, 1858. James W. Davidson,
late U. S. Marshal Northern District Illinois."
It does not appear in what character the person receiving
the execution, acted. No official character is affixed to the
name of either Davidson or Matthews, at the time the writ
came to hand, nor is there any proof that either of them was,
in fact, or had ever acted, the one as marshal, and the other
as his deputy. The statement of the levy is too indefinite and
uncertain, to give the marshal a right of possession or property
in the lumber. It does not show when it was levied, whether
in the lifetime of the^. fa., or after it had expired, nor upon
what lumber, or kind, or description, so that others interested
might be notified of a change of possession by means of a
levy. For all that appears, " heretofore levied ' ' may mean
that it was levied on after the life of the execution. There
is nothing definite or certain about it — nothing to notify other
parties of the fact, that the lumber was in the custody of
the law by a regular and valid levy, and Gibson testifies there
was only about one hundred thousand feet levied on, including
shingles and laths. We infer from the testimony of Randall,
that the only " separation and marking out " the lumber levied
on from the other lumber in the yard, was that spoken of by
Randall, which was the appropriation of all the lumber east
of a certain telegraph pole, and between that and the plank
road, to the execution, and which was afterwards removed to
make way for the McCrady lumber. Here was no displacing
of the piles of lumber, no change made in its position, no
mark put upon it to show that it was in the custody of the law,
and no act done by which, without the writ of execution, the
officer could be made a trespasser.
In addition to all this, the lumber was left in the possession of
an employee of the defendant, who was instructed, on a certain
contingency, to go on and sell it as usual, and pay over the
proceeds to the defendant in the execution, which he did do.
These facts, if the levy was a valid one, furnish strong ground
1863.] Davidson v. Waldron et al. 135
Opinion of the Court.
for the belief, taken in connection with the fact that a pay-
ment of seven hundred dollars made by the defendant, was
not indorsed on the execution, that the levy was colorable
only, and made to shield the property from the claims of
other parties, or to create a lien separate from the possession,
neither of which the law will indorse. Laws v. Worthington,
4: Penn. State R. 155. But if the levy was valid, permitting
the property to remain for months in the possession of the
defendant, or of Eandall who was in the defendant's employ-
ment, selling from it as usual, and paying over the proceeds
to the defendant, was fraudulent, as against third persons
having demands against the defendant, and made the exe-
cution under which the levy was made dormant, and therefore
constructively fraudulent as to them. The rule is well settled,
if a creditor seize the goods of a debtor under an execution
and suffers them to remain in the possession of the debtor, the
execution is deemed fraudulent and void as against a subse-
quent execution. Storm v. Woods, 11 Johns. 110.
It is admitted the consent of the creditor must be shown.
It must be shown that the creditor actually so instructed the
officer, or that the facts and circumstances are such as to justify
the inference that such instructions were given — that the delay
was with the knowledge and assent of the creditor. The fact
that the plaintiffs were proceeding on an execution to collect
seven hundred dollars more than was due upon it — the
presumption that the marshal informed the plaintiff's attorney
at Chicago of the arrangement made with Randall about the
disposal of the lumber, and no countermand by him, warrants
the inference that all the acts done in reference to this lumber
were done with the knowledge and approbation of the counsel
for the plaintiff, and for the purpose of protecting the prop-
erty from the claims of other creditors. This being so, the
execution was fraudulent as against such persons.
But waiving all this, as not being properly in the case, the
question is not, whether the plaintiffs in the execution have
lost their lien on this lumber by the delay, but it is, has the
marshal lost the benefits of the levy by reason of his delay ?
136 Davidson v. Waldron et al. [April T.
Opinion of the Court.
There is no attempt to throw a loss on the plaintiffs in the
execution held by the marshal, but the loss is thrown on the
officer, who is the party in fault for the delay in levying and
selling. If the attempt here, was to throw the loss on those
plaintiffs, then they might wTell say that they did not authorize
the delay. The marshal is the meritorious party in this action,
and he alone can be made to suffer by his own negligence.
The plaintiffs in the execution held by him, have their remedy
against him.
But it is urged by the plaintiff, that the validity of this
levy cannot be inquired into by this court, as the fi. fa. under
which it was made, was issued by a court of a different juris-
diction, and much labor and learning have been exhibited in
the argument on this point. We have looked into all the
cases cited by the counsel, and must say, they do not touch
such a case as this. Here a remedy is sought by an indi-
vidual, not as an officer of the United States, in a court of
the State in a matter over which the State court has unques-
tioned jurisdiction, namely, an ordinary action of trover.
The plaintiff, to sustain his claim, has to give some evidence
of his right, and whatever be the character of that evidence,
like everything else in the case, it becomes subject to the
scrutiny of the court trying the cause.
The court which issued the execution under which this levy
was claimed to have been made, was a court of the United
States, but the officer is suing in a State court, as an individual,
and he must show that court that the writ under which he
justifies or claims property, was properly issued by that court,
and that he made a valid levy under it. It would be strange,
indeed, if such questions could not be heard, and decided by
the State court, without the hazard of a clashing of jurisdic-
tions, or the charge of usurpation of power. The books abound
with cases of this kind, where justification is claimed for acts
done under process issuing from different jurisdictions, and
the validity of such process examined and adjudged.
Suppose a party, suing in a State court in an action of
ejectment, claiming title by virtue of a sale of the premises
1863.] Hoskins v. Litchfield et ux. 137
Syllabus.
under an execution issued out of the District or Circuit Court
of the United States, is not the validity of this execution and
of the proceedings under it, a fair subject of investigation
and adjudication by the State court? Is the writ, because
issued by a court of the United States, invulnerable to any
attack in a State court, when it is there offered as evidence ?
What law, or principle of justice, bestows upon such process,
such immunity? Is not the claimant bound to show the
execution valid, and the proceedings under it legal, if either
is attacked ? The answer must be in the affirmative. Is the
principle different, when personal property is the subject of
the action ?
We are inclined to think, this is the first time such an
objection has been made. It certainly has no merit or force
in it.
The judgment must be affirmed. Judgment affirmed.
William Hoskins
v.
Hervey Litchfield and Wife.
1 Homestead — when it may be claimed. Where a householder and his
wife join in the execution of a mortgage upon premises in which they
have a homestead right, but which was not released in the mortgage, the
mere omission on their part to interpose their claim to that right as a de-
fense to a bill to foreclose the mortgage, will not operate as a waiver of
such right.
2. So after a decee of foreclosure upon such a mortgage, sale of the
premises, and confirmation of the sale, without objection, the defendants
interposed a motion to set aside the decree of sale, and all proceedings
under it, upon the ground that they held a homestead right in the premises.
The motion was granted, and correctly so.
3. Same — of the remedy to protect it. It should be observed that it was
agreed in the court below, that the defendants should have all the relief
by their motion, that they could have had by bill in chancery or other pro-
ceeding.
18— 31st 111.
138 Hoskins v. Litchfield et ux. [April T.
Statement of the case.
Writ of Error to the Circuit Court of Bureau county;
the Hon. M. E. Hollister, Judge, presiding.
On the 30th day of August, 1859, the plaintiff in error,
William Hoskins, exhibited his bill in chancery in the Circuit
Court, against Hervey Litchfield and Elizabeth Litchfield, his
wife, to foreclose a mortgage executed by the defendants, to
Hoskins, on the 10th of December, 1857.
The mortgage was in the ordinary form, containing the
words, "grant, bargain, sell and convey." There was no
express release of the homestead right of the defendants in
the premises, either in the body of the deed, or in the certificate
of acknowledgment. The bill required the answers of the
defendants to be under oath, and prayed for a foreclosure of
all equity of redemption and claim in and to the mortgaged
premises. Process was issued- and duly served upon the
defendants, and they not appearing, the bill was subsequently
taken for confessed, and a decree entered for a foreclosure,
and sale of the premises. At a subsequent term, the master
reported that he had made sale of the premises in pursuance
of the decree, and that the complainant became the purchaser.
At the same term that report was approved, and the sale
confirmed by the Circuit Court, and the case ceased to be
further docketed, the defendants having made no objection to
the rendition of the decree, the sale of the premises, or the
confirmation of the sale. And never having made any claim
of homestead, either when the decree was entered, or when
the sale was made, or when the sale was confirmed. On th<?
12th of February, A. D. 1861, a year after the sale was made
the defendants filed with the clerk of the Circuit Court then
motion, supported by affidavit, with notice to the complainant
to set aside the decree of sale, and all the proceedings subse-
quent to the decree, because the mortgaged premises were
their homestead, and that such homestead did not exceed in
value $1,000, and had never been relinquished according to
law, and that the debt secui-ed by the mortgage, had accrued
after August 4, 1851, and was no part of the purchase-money
for the premises, but not showing any reason why their claim
1863.] Hoskins v. Litchfield et ux. 139
Briefs of Coansel.
of homestead had not been set up when the decree of sale
was entered, or when the sale was made or confirmed. The
complainants agreed with the defendants that they should
have all the relief by their motions and affidavits that they
could have had by bills in chancery and depositions, or other
proceedings to set aside such sale, if they were entitled to
any such relief upon the facts, and the case was re-docketed
at the March term, 1861, of said Circuit Court, which motion
of the defendants, the Circuit Court, at its September term,
A. D. 1862, sustained, and set aside the sale, and the original
decree of sale, and all the proceedings subsequent thereto, to
which decision of the court, the complainant then and there
excepted, and had his bill of/ exceptions signed and sealed by
the court, embodying said motion, notice, affidavits, and the
decision of the court thereon. The court also further entered,
at the same time, a formal decree for the defendants com-
plying with said motion, and ordering " that said premises
stand in all respects as though no proceedings were had upon the
said mortgage" and that the defendants recover their costs of
complainant.
The complainant below sued out this writ of error, and now
questions the correctness of the ruling of the Circuit Court in
setting aside the decree of foreclosure, and the proceedings
had in pursuance of such decree.
Mr. Milton T. Peters, for the plaintiff in error, insisted
that the Circuit Court erred in sustaining the defendants'
motion, and in rendering a decree in pursuance of the motion,
for the following reasons :
1. The sale was strictly in pursuance of the decree, and
here was no injurious mistake, misrepresentation or fraud in
said sale, and therefore such sale could not be invalidated.
Cooper v. Crosby, 3 Gilm. 508.
2. This motion is substantially a bill of review by the
stipulation of the parties, otherwise relief could not be sought
in the form of a motion. Bills of review are to correct errors
of law apparent upon the record of the original case, or to
introduce important testimony newly discovered, neither of
140 Hoskins v. Litchfield et ux. [April T
Briefs of Counsel.
which were claimed. The defendants admitted there was nc
error in the record of the original cause, and thej also con-
ceded that they had not discovered any new testimony. Be-
sides, they had not paid the costs of the original case, which
is necessary in a bill of review. Griggs v. Gear, 3 Gilm. 10 ;
Evans v. Clement, 14 111. 209 ; McDaniel v. James, 23 111.
408.
3. The defendants were guilty of unreasonable delay in
making their application to set aside the sale, one whole
year having elapsed, and no excuse shown for such delay.
Noyes v. True, 23 111. 503.
4. Defendants having neglected to make any claim of
homestead, when the decree for the sale was entered, or when
the sale was made or confirmed, and no excuse shown why
such claim was not made at the proper time, they cannot now
for the first time make such a claim. Scates' Comp. 576 ;
Getzler v. Saroni, 18 111. 518.
5. While the husband is living, he alone can set up the
claim of homestead. The wife cannot. The law of 1857
only changes the law of 1851, so as to require the signature
of the wife to the deed relinquishing the homestead. No
other change was made. 18 111. 518.
6. Besides, Mrs. Litchfield was made a party to the
original suit, and she was, therefore, as much bound as her
husband to have set up the claim of homestead in that suit, if
she desired her homestead, and not having done so, she cannot
do it now, any more than her husband. 18 111. 518. This
case was a bill of review by the wife to recover her homestead,
and her application was denied.
7. The Circuit Court, in the decree for defendants, held
that this mortgage was absolutely void, because there was no
relinquishment of the homestead, for the decree provided
" that said premises should stand in all respects as though no
proceedings were had upon the mortgage" Thus denying all
right whatever to foreclose a mortgage upon a homestead, when
the homestead had not been formally relinquished. If this be
the law, then the complainant's mortgage has no more force
than blank paper, and at no time could the mortgage be fore-
1863.] Hoskins v. Litchfield et ux. 141
Briefs of Counsel.
closed, though after the premises had ceased to be the home-
stead of the defendants, which would be contrary to the terms
of the mortgage deed which estops the mortgagors from claim-
ing that none of their estate passed by the mortgage. Scates'
Comp. 961.
Messrs. Taylor & Paddock, for the defendants in error.
The defendants not having waived their claim of home-
stead to the premises, by the execution of the mortgage, and
the premises not exceeding $1,000 in value, the omission of
the waiver is fatal to the mortgage and all proceedings under
it. Scates' Comp. 577; Kitchell v. Burgwm et ux., 21 111.
40; Vanzant v. Vanzant, 23 111. 536.
The defendants were not required by the law to do anything
to secure their homestead ; the proofs in the record show the
premises to have been their homestead, and that they did not
by the execution of the mortgage waive that benefit, the
premises therefore would remain their homestead by operation
of law so long as they continued to occupy it as such, and
this too "without even manifesting an intention to avail
themselves of the homestead law." Green v. Marks et al. 25
111. 222.
The premises not exceeding in value $1,000, as shown by
the proof, the mortgage never attached a lien on the same ;
the defendants, after the making of the mortgage, could have
conveyed the premises to a third party, and vested in him a
perfect title, free from the incumbrance of the mortgage.
Green, v. Marks, 25 111. 222.
When property is exempt by statute from u levy and sale
On execution" then as to such property no judgment, execu-
tion, or decree of court can have an existence. Cole v. Green,
21 HI. 104.
The plaintiff, by his purchase at the master's sale, could get
no better title or interest in the premises than his mortgage
covered ; the rule of caveat emptor is applicable to all salea
under a decree of court. England v. Clark, 4 Scam. 489.
112 Hoskins v. Litchfield et ux. [April T.
Briefs of Counsel.
Where the plaintiff himself becomes the purchaser he is
2hargeable with notice, and the consequences of all irregular-
ities of the decree and of the sale. McLagan v. Brown, 11
111. 523.
The words grants bargain and sell in the mortgage can
make no difference in the rights of the defendants to the
benefit of the homestead : they were nevertheless mortgagors,
and a mortgagor is held to be the real owner of the land. 2
Bouvier Die. 179.
Mr. Peters, for the plaintiff in error, in conclusion, said,
the case of Green v. Marks et al. does not conflict with
Getzler v. Saroni, which latter case holds that there must be
a claim of homestead made at the proper time, bat if this
mortgage was no lien upon the premises, by reason of their
being a homestead, yet this was not made known to the court
in the original suit, and so the decrees of the court therein
were correct upon their face, and could only be reviewed for
newly discovered testimony, which is not set up in this case.
The case of Kitchell v. Burgwin, 21 111. 40, relied upon by
defendants' counsel, merely establishes that there was no
release of the homestead in complainant's mortgage, which
is not insisted upon by complainant. But this case does not
decide that when the homestead has not been relinquished, it
still is not necessary to claim the homestead, when a sale is
sought to be made, but impliedly decides that such claim has
to be made, and so is the statute. Scates' Comp. 576, Sec. 3.
The case of Green v. Marks, in saying that " the statute
casts the privilege upon him, and is secured to him without
his ever manifesting any intention to avail himself of the
homestead act," doubtless refers to the difference between our
homestead laws and those of some other States, which
require that the party claiming the homestead must file his
claim with the recorder of deeds or other public officer, so
that his claim of homestead may be made known to the
public. But our court did not decide that this privilege of
homestead is different from other privileges, which always
have to be set up and insisted upon at the proper time, or
1863.] Hoskxns v. Litchfield et ux. 143
Opinion of the Court
they are debarred. A privilege is not compulsory upon the
party entitled to it ; he can claim it or not, as he sees proper.
If he does not claim it at the time when he is required to
manifest it, then, by his own consent, his privilege is gone.
Mr. Chief Justice Caton delivered the opinion of the
Court:
We are now presented with a new question under the home-
stead law. Ever since its enactment, we have endeavored
to administer this law in that spirit of liberality which man-
ifestly influenced the legislature in its enactment, without
frittering away its benefits by construction, because we might
not, as individuals, approve its policy. This was for the legis-
lature to determine, and we cordially accept that determina-
tion, and will faithfully discharge our duties, by fairly
enforcing the law in its true spirit and intent.
No one can doubt, who will carefully examine this legis-
lation, that it was the object of the legislature, especially to
throw a shield and protection around the wife and children,
even more than the husband. To those, they designed to
secure a home, in spite of the husband and father, and in
defiance of the world, unless it should be expressly, and
understandingly, released by the wife, in the mode provided
by the statute, or unless she removed from, and abandoned
it, as a home. In one of these modes alone, does the law
design that the right shall be lost to the wife and children.
This right was designed by the legislature to be as sacred as
the right of dower, and from similar considerations of public
policy ; and occurring events, which are filling the land with
widows and orphans, solemnize the policy which dictated the
law, at a time when no such occasion existed to suggest its
propriety.
This mortgage, as to the homestead right, is like a mort-
gage in which the wife has not released her right of dower,
when sought tc be enforced in defiance of that right. Sup-
pose in such a case the wife were made a party to a bill to
foreclose a mortgage, without any averment that any right of
144 M. C. R. R. Co., Garnishees, v. Keohane. [April T.
Syllabus.
dower existed, or that the wife had released her dower, and
a decree passed against the husband and wife, foreclosing the
mortgage and ordering a sale of the premises. No one
would contend that the right of dower would be affected by
such decree, or that a sale under it could convey the prem-
ises freed from the right of dower, and for the simple reason
that the law has provided a different and an only mode for
the release of dower. So here, the statute has provided
another, different and only mode, for the release of the home-
stead right, while the premises are occupied as a homestead.
The husband cannot, by failing to make defense for himself
and wife, give the mortgage, in which the wife has not
released the homestead, the same practical effect that it would
have, had she thus released. This would be to defeat the
statute and its manifest object, by a mere legal form. By
this law the homestead is placed beyond the control of the
husband, and he cannot be allowed to destroy this right indi-
rectly, any more than directly — by act of omission more
than commission — save only, by one mode, which is, by
removing his family from it, and with the design that it shall
thereby cease to be a homestead, and perhaps, providing them
with another home. If this be the true construction of the
law, even this decree did not impair the homestead right,
although, as it was an apparent cloud upon it, it was proper
for the court to set it, and the proceeding under it, aside.
The order is affirmed.
Decree affirmed.
The Michigan Central Railroad Co., Garnishees
of Joseph W. Leighton,
v.
Philip H. Keohane.
1. Garnishment — when it may issue. To authorize the issuing of
garnishee process against one who is supposed to be indebted to a defend-
ant in execution, there must be a return upon the execution, either in
terms or in substance, of " no property found."
1863.] M. C. K. K. Co., Garnishees, v. Keohane. 145
Statement of the case.
2. Same — interrogatories. Until interrogatories are filed, and an
opportunity afforded to answer them, a final judgment cannot be entered
against a garnishee.
Writ of Error to the Circuit Court of Cook county ; the
Hon. George Manierre, Judge, presiding.
In November, 1356, the defendant in error, Philip H.
Keohane, recovered a judgment in the court below, in an
action of assumpsit against Joseph W. Leighton, for the sum
of one hundred and eight dollars and twenty-six cents.
On the 19th of December following, an execution was
issued on said judgment, which was returned on the 26th
of the same month, with the following return indorsed :
" I have demanded property of the within named defend-
ant, Joseph W. Leighton, and he says he has no property to
turn out to satisfy the same. I therefore return said execu-
tion no part satisfied, by order of the plaintiff's attorneys,
hereon indorsed, the 26th Dec. 1856."
On the 20th of January, 1857, Keohane filed in the cause
below, his affidavit, setting forth the recovery of the judg-
ment against Leighton, the issuing and return of the execu-
tion ; that Leighton had no property, within his knowledge,
in his possession liable to execution, and that he had reason to
believe, and did believe, that the Michigan Central Railroad
Company was indebted to Leighton ; and on the same day, a
garnishee process was issued out of the Circuit Court against
the railroad company, which was returned duly served.
Afterwards the default of the railroad company was entered,
and a conditional judgment was rendered against them, in
favor of Leighton, for the sum of one hundred and thirty-six
dollars and sixty-six cents, and the court ordered a scire facias
to issue ; and thereupon a scire facias was issued, which was
returned served.
Subsequently, the company not appearing, nor any one for
them, the said conditional judgment was made final and con-
clusive by the Circuit Court, and an execution was awarded.
The company sued out this writ of error, and two questions
19— 31st III.
146 M. 0. R. R. Co., Garnishees, v. Keohane. [April T.
Opinion of the Court.
arise upon the record: First> whether the sheriff's return
upon the execution was sufficient to authorize the garnishee
process to issue ; and second, whether the final judgment could
be properly entered against the garnishee, without interroga-
tories having first been filed.
Messrs. Walker, Van Akman & Dexter, for the plaintiffs
in error.
Messrs. Thompson & Bishop, for the defendant in error.
Mr. Justice Walker delivered the opinion of the Court:
This record presents two questions for determination. The
first is, whether the sheriff's return to the execution is suffi-
cient to authorize a proceeding by garnishee process. And
the second is, whether a final judgment can be rendered against
the garnishee, without filing interrogatories. The sheriff's
return to the execution is this, " I have demanded property
of the within named defendant, Joseph W. Leighton, and he
says he has no property to turn out to satisfy said execution.
I therefore return said execution, no part satisfied, by order
of the plaintiff's attorney hereon indorsed." The order for
the return of the execution, is indorsed on the execution, and
signed by the attorney.
The thirty-eighth section of the chapter, entitled "Judg-
ments and Executions," Rev. Stat. 307, provides, that when a
judgment has been rendered by a court of record, or a justice
of the peace, in this State, and an execution against the de-
fendant shall be returned by the proper officer, " no property
found," on the affidavit of the plaintiff, or other credible
person being filed, showing that the defendant has no prop-
erty within the knowledge of affiant liable to execution, and
that affiant had just reason to believe that another person is
indebted to defendant, or has effects or estate of such de-
fendant in his hands, the court, or justice of the peace, is
required to cause such person forthwith to appear before such
court, or justice of the peace, as a garnishee. And the cor**
1863.] M. 0. E. E. Co., Gaknishees, v. Kbohane. 147
Opinion of the Court.
or justice of the peace, is required to examine, and proceed
against the garnishee, in the same manner as is required bj
law against garnishees in original attachment suits.
A party seeking the benefits of this provision, must bring
himself, substantially, within its provisions. Until a judgment
is recovered, this proceeding is unauthorized. And an exe-
cution must have been issued and returned by the proper
officer, " no property found," to warrant the issuing of gar-
nishee process under this section. These acts are indispensable
to maintain the proceeding. This is a statutory mode of
obtaining execution after the means known to the common
law have been employed and failed. And it can only be
resorted to after the requirements of the statute have been
complied with, as conditions to issuing the process.
In this case there is not a return of " no property found."
The return states, that the sheriff had demanded property of
the defendant, who said he had none to turn out to satisfy the
execution. For aught that appears from this return, he may
have had an abundance, liable to levy and sale, to fully satisfy
the execution, and the sheriff may have been apprised of the
fact. He nowhere states that he had made any search for
property, or that he was unable to find any, as he was required
to do before he returned the writ. Unless the return in terms,
or in substance, states that " no property is found," it is insuf-
ficient, and this return fails to show that fact.
Again, when the proper steps have been taken, the proceed-
ing is required to proceed in the same manner that is pro-
vided in cases of original attachments. The sixteenth section
of the attachment law, Eev. Stat. 67, requires, in case the gar-
nishee shall fail to appear and make discovery, to enter a con-
ditional judgment, and to issue a scire facias against the
garnishee, returnable to the next term of the court, to show
cause why the judgment should not be made final. And if he
fails to appear and make discovery, upon oath or affirmation,
in the mode prescribed by the act, the court is required to
confirm the judgment, and award execution, for the plaintiff's
entire debt, and costs.
The eighteenth section of the same act requires the plaintiff,
148 Connor v. Nichols. [April T.
Statement of the case.
during the return term, to exhibit and file allegations and
interrogatories in writing, upon which he may be desirous to
obtain and compel the answer of the garnishee, touching hie
indebtedness to the defendant, or as to property, effects and
credits of the defendant, in the hands of the garnishee. Thin
is obviously the discovery required by the sixteenth section of
the act, and is the mode of obtaining it, as required by the
chapter. These provisions required the defendant in error to
file his interrogatories, and the plaintiff in error had a right
to have the opportunity of answering them, before a final
judgment was rendered and execution was awarded. The
statute has conferred this right, and the creditor cannot deprive
him of it. Until interrogatories are filed, and the opportunity
is afforded to answer them, the garnishee is not in default.
Until the creditor had filed interrogatories, he was not in a
position to demand an answer. The entry of the final judg-
ment, before interrogatories were filed, was not authorized by
the statute, and the judgment of the court below must be
reversed, and the cause remanded.
Judgment reversed.
Thomas Connob
v.
Israel T. Nichols.
1. Ejectment — homestead. Setting up the homestead right in an action
«f ejectment, defeats the claim to recover the possession.
8. Homestead — deed of trust — release. A deed of trust executed by a
householder and his wife, confers no right to the possession of the home-
stead, unless the wife expressly release such right.
Appeal from the Superior Court of Chicago, the Hon. Johm
M. Wilson, Chief Justice, presiding.
This was an action of ejectment instituted in the court
below, by Israel T. Nichols against Thomas Connor, to recover
the possession of certain premises in the city of Chicago.
1863.] Connor v. Nichols. 149
Briefs of Counsel.
The defendant interposed the plea of not guilty, and the
issue was tried by the court, without the intervention of a
jury.
The plaintiff derived title through a deed of trust upon the
premises in controversy, executed on the 14th of October,
1858, by the defendant, Thomas Connor, and Mary A. Connor,
his wife, to Henry Greenebaum, to secure the payment of a
certain note therein described.
The only question arising upon the record was, whether the
homestead right of the defendant, Connor, which was inter-
posed as a defense in the suit, was released by the deed ot
trust.
There were no words of release of the homestead in the
body of the deed.
The acknowledgment was in the usual form, the officer cer-
tifying that said Connor and wife acknowledged the said deed
as their free and voluntary act, for the uses and purposes
therein set forth, and as to the wife, " that she had freely and
voluntarily executed the same, and relinquished her dower to
the lands and tenements therein mentioned, without compul-
sion of her said husband, and that she does not wish to retract
the same."
By stipulation, which is set forth in the opinion of the court,
it appeared that at the time of making the deed of trust, the
right of homestead existed in the defendant.
The court below found the issue for the plaintiff, Nichols.
The defendant moved for a new trial, upon the ground that
the finding should have been in his favor ; which motion was
overruled, and a judgment was entered in pursuance of the
finding of the court. From that judgment, Connor, the de-
fendant below prayed this appeal, and assigns for error, that
the court erred in not finding that he was entitled to a home-
stead in the premises in controversy.
Messrs. Barker & Tulet, for the appellant.
Under the act of February IT, 1857, amendatory of the
homestead act of 1851, it is essential, to pass the homestead
150 Connor v. Nichols. [April T.
Briefs of Counsel.
right by deed of trust, that there should be a release of that
right, and a proper acknowledgment. Moore v. Dunning,
29 111. 130; VcmzantY. Vanzant,*2S 111. 536. It is also
intimated, in Ely et al. v. Eastwood et ux., 26 111. 107, that
the act of 1857 applies to alienations by deed of trust ; and
in Smith v. Marc, 26 111. 150.
The deed of trust, not being sufficient to pass the right of
homestead, is absolutely void. The condition to the alienation
of the homestead, is a condition precedent to the passing of
any estate whatever. Smith's .Real Property, 44. See also,
Taylor v. Hargons, 4 Cal. R. 268 ; In re Buchanans Estate,
8 ib. 507 ; Poole v. Gerrard, 6 ib. 72 ; Richards v. Chace,
2 Gray (Mass.) R. 383 ; Williams et al. v. Starr et al., 5
Wisconsin R. 535 ; Alley v. Bay et al., 9 Iowa R. 509.
But even if the deed be good for the excess over $1,000,
the plaintiff cannot recover that excess in ejectment ; he can
take nothing in this action. Cook et al. v. Christian, 4 Cal.
R. 23 ; Gary v. Estdbrook, 6 Cal. R. 459.
The homestead being established, and no proof of its value,
the presumption is, that the premises are all of the homestead.
Rhodes, Pegram <& Co. v. McCormick, 4 Iowa R. 368.
Mr. Elliott Anthony, for the appellee.
The homestead act, being in derogation of the common law,
must be strictly construed.
There are three pre-requisites to the existence of the home-
stead right at all : First, it must be a " lot of ground and build-
ings thereon occupied as a residence." Second, it must be
" owned by the debtor," who is " a householder," and " having
a family." Third, " to the value of one thousand dollars,"
that is, it must not exceed that value.
The value is as much a matter of description as either of
the other pre-requisites. Beechy v. Baldy, 7 Mich. 501.
The acts of 1851 and 1857 should be construed together,
and thus can be held to apply to cases of levy and forced
sales. A sale by the trustee under the power given in the
deed, is not a " forced sale," and therefore not within the acts.
1863.] Connor v. Nichols. 151
Briefs of Counsel.
To entitle the debtor to the benefits of these acts, he should
make his selection, so far as the law has provided a mode of
selection ; and if none is provided, he should resort to a court
of equity. Helfenstein v. Cove, 6 Iowa, 376 ; Kitchell v.
Burgwin, 21 111. 45 ; 7 Mich. R. 509 ; 38 K Hamp. R. 72.
But if the right of homestead still exists in the grantors in
this deed of trust, it does not follow that the deed is therefore
void, only as to the value of $1,000 ; the deed is at least good
for the excess. 7 Mich. R. 500 ; 6 Iowa It. 376 ; Sargeant v.
Wilson, 5 Cal. R. 506 ; Dorsey v. McFarland, 6 Cal. R. 346;
Bevalh v. Kraemer, 8 Cal. R. 74 ; Barnes v. Gay, 7 Iowa R.
31 ; Davis et ux. v. Andrews, 30 Yt. R. 681.
Now if there is no legal disability upon the part of the
husband and wife to sell their property, and the statute and
law of the land does not absolutely prohibit a husband and
wife from selling their homestead, and if they do sell, or if
they stand by while the land is sold by others, with their
knowledge, then by all the laws of right and justice, they
should be estopped to set up title to the land thus sold and
conveyed. Snodgrass v. Ricketts, 13 Cal. 359 ; Cochran v.
Harrow, 22 111. 345 ; 5 Clarke, 415 ; 20 Texas, 639.
One who knowingly stands by and permits another to pur-
chase, and a fortiori, one who misleads and induces another
to purchase, should not be allowed to set up an opposing
equity, nor take advantage of the legal title by which it is sup-
ported. Blackwood v. Jones, 4 Johns. Eq. (N. C.) 54 ; Mor-
ris Canal <& C. Co. v. Lewis, 1 Beasley, (N. J.) 323 ; 14 La.
Ann. R. 175.
If a man stands by, and suffers another to purchase land to
which he has a mortgage or title, without making the facte
known to the purchaser, he will be estopped in equity from
exercising his legal right. Cochran v. Harrow, 22 111. 345o
Parties are estopped by the recitals in their deed. Byrne
v. Morehouse, 22 111. 604; 8 Wend. 483.
Mr. Melville W Fuller, for the appellant, did not think
it necessary to hold the deed void for want of a release of the
homestead : upon this point he differed with his associate
152 Connor v. Nichols. [April T.
Opinion of the Court.
counsel ; he was of opinion, from the language of this court,
in the cases of Young v. Graff. 28 111. 20, and Moore v. Dun-
ning, 29 111. 130, that it would be held, in a proper case, that
such a deed would convey the property, contingent upon the
termination of the homestead right by efflux of time.
He insisted that the amendatory act of 1857, embraces all
sales, whether forced or voluntary, and that there was no re-
lease of the homestead in this deed, as none appeared, either
in the body of the deed, or in the certificate of acknowledg-
ment.
The homestead right is a full bar in ejectment, even though
the premises are of value exceeding one thousand dollars. No
recovery can be had in ejectment for the excess, for " there
are no means of identifying and distinguishing what part
passes and what does not." Richards v. Chase, 2 Gray, 383.
Mr. Justice Bbeese delivered the opinion of the Court:
This was an action of ejectment to recover the possession of
certain premises in the city of Chicago.
On the trial this stipulation was entered into :
" It is hereby stipulated and agreed by the parties hereto,
by their respective counsel, and admitted on behalf of said
plaintiff, for the purposes of this suit, that the real estate in
question in this suit, and the buildings thereon, were, in A. D.
1852, and from thence hitherto have been, and still are occu
pied as a residence, by the defendant, Thomas Connor, and
owned by him, [unless affected by the trust deed in this case,]
and that he, said defendant, is a householder, and has a family,
consisting of a wife and children, now living, and that he and
his said family are and have been, since A. D. 1852, occupy-
ing said premises as a householder. And it is further hereby
stipulated and agreed, that the debt which the trust deed in
this case, and under which the plaintiff claims title, was given
to secure, was not incurred for the purchase or improvement
of the premises described in the plaintiff's declaration, or any
part thereof."
1863.] Herring v. Quimby et al. 153
Statement of the case.
This stipulation brings the case within the principle decided
in Patterson v. Kreig, 29 111. 514, and re-affirmed in Pardee v.
Lindley, and Iloskins v. Litchfield, Smith v. Miller, and
Boyd v. Cudderback, decided at this term. It is unnecessary
to reiterate the argument in those cases. They go to the full
extent of holding, that setting up the homestead in an action
of ejectment, defeats the claim to recover the possession. By
ousting the wife, who has not released her right of homestead,
the very object and purpose of the law would be defeated.
The trust deed, without the wife's express release, conferred
no right of possession, and the judgment should have been
for the defendant. The judgment is reversed, and the cause
remanded.
Judgment reversed.
James W. Herring
v.
Benjamin F. Quimby et al.
1. Practice — time of filing declaration. The latter clause of section
eight, of the " Practice " act, which requires a declaration to be filed ten
days before the " second term of the court," after the issuing of the sum-
mons or capias, does not refer, necessarily, to the first process in the cause,
but refers to the process which may be actually served on the party,
though that be an alias or pluries, or subsequent writ.
2. If a defendant enter his appearance in a cause at the first term after
the commencement of the suit, and desire to see the declaration, though
not served with process, the court, in its discretion, may order the plaintiff
to file his declaration within a reasonable time.
Writ of Error to the Circuit Court of Cook county, the
Hon. George Manierre, Judge, presiding.
This was an action on the case, commenced to the Septem-
ber term, 1860, of the Circuit Court, by Quimby and Low
against Herring. The original summons in the cause, bearing
teste the 12th day of July, 1860, was returned August 31st,
1860, " not found."
20— 31st 111.
154 Herring v. Quimby et al. [April T.
Briefs of Counsel.
Three days prior to the commencement of the October
term, 1860, which was the next term succeeding that to which
the original summons was made returnable, the plaintiffs below
filed their declaration.
On the 17th day of May, 1861, an alias summons was
issued, which was served upon Herring on the same day. The
cause was continued from term to term, until the 6th day of
July, which was in the June term, 1861 ; when a default was
taken, a jury called to assess damages, and final judgment
entered against the defendant below ; and upon that judg-
ment he prosecutes this writ of error, insisting that the Circuit
Court should have entered a non-suit against the plaintiffs in
that cause, instead of a default and judgment against the
defendant, for the reason that the declaration was not filed
ten days before the second term after the suit was commenced.
Messrs. King & Kales, for the plaintiff in error, insisted
that inasmuch as the declaration was not filed ten days before
the commencement of the October term, 1860, the Circuit
Court, instead of rendering a judgment in favor of the
plaintiffs below, should have rendered a judgment against
them, as in a case of a non-suit.
Mr. Melville W. Fuller, for the defendants in error.
This case involves the construction of the eighth section of
the " Practice " act, Eev. Stat. 1845, p. 414, (Scates' Comp.
253,) the concluding part of which declares that "if no decla-
ration shall be filed ten days before the second term of the
court, the defendant shall be entitled to a judgment as in
case of a non-suit."
" The object of the statute," said Mr. Justice Trumbull,
in Downey v. Smith, 13 111. 673, " is to hasten proceedings,
and not allow the plaintiff to keep a defendant attending on
court from term to term, without apprising him of the nature
of the complaint against him."
This object is fully attained by the construction that the
statute was intended to apply to cases where there has been
service of process.
1863.] Herring v. Quimby et al. 155
Opinion of the Court.
It would not " hasten " the proceedings for the plaintiff to
file his declaration, when the defendant is not in court by
service of process or otherwise, and may never be brought in
to answer it. But, in point of fact, this declaration was filed
to the second term after the original summons was issued ; the
complaint, however, is, that it was not filed ten days before
that term.
Now, the object in requiring the declaration to be filed ten
days before the term, "could only have been," said Chief
Justice Caton, in Collins v. Tuttle, 24 111. 623, "to give that
time to the defendant to determine whether he has a defense
to the declaration, and to prepare to make it."
The reason of the rule, then, would give it application only
in case the defendant were before the court, by service of
• process / it could not apply when he was not in court at all.
The common law rule, as laid down in 1 Tidd's Prac, Ch.
17, p. 418, warrants the same conclusion.
It is insisted then, that when the statute declares that the
declaration must be filed ten days before the " second term,"
it does not necessarily mean the term of the court next after
that to which the original summons was made returnable,
but may mean the " second term " after service of process.
Mr. Chief Justice Caton delivered the opinion of the
Court :
This action was commenced to the September term, 1860.
The declaration was filed but three days before the October
term, which was the next succeeding term. The first sum-
mons was returned in October, not served. The cause was
continued from term to term, till the 6th of July, which was in
the June term, 1861, when a default was taken. In the mean-
time an alias summons was issued, returnable to the May
term, which was served on the defendant. The complaint is,
that the court should have non-suited the plaintiffs instead of
defaulting the defendant. This is the statute relied upon : " If
the plaintiff shall not file his declaration, together with a
copy of the instrument of writing or account on which the
action is brought, in case the same be brought on a written
156 Herring v. Quimby et al. [April T.
Opinion of the Court.
instrument or account, ten days before the court at which the
summons or capias is made returnable, the court, on motion
of the defendant, shall continue the cause at the cost of the
plaintiff, unless it shall appear that the suit was commenced
within ten days of the sitting of the court ; in which case the
cause shall be continued without costs, unless the parties shall
agree to have a trial. And if no declaration shall be filed
ten days before the second term of the court, the defendant
shall be entitled to a judgment, as in case of non-suit. The
plaintiff in error relies upon the last clause of the statute, to
show that the court should have non-suited the plaintiffs
instead of defaulting the defendant.
In Collins v. Tuttle, 24 111. 623, we have already decided,
that under the first member of the statute quoted, the defend-
ant need not appear in court and make a motion for a contin- '
uance of the cause, but that if he does not appear, it is the
duty of the court to continue it under the general order, but
without giving costs to the defendant. This would seem to
reduce the inquiry to the question, What event is referred to,
after which the second term shall occur, ten days before which
the declaration shall be filed 1 There can be no doubt that
the same event is referred to in this last clause as in the first,
which requires the declaration to be filed ten days before the
first term of the court, to save a continuance. That event is
the issuing of the summons or capias. The language is:
" ten days before the term at which the summons or capias is
made returnable." What process is here referred to? Is it
the first process in the cause, though that may not be served,
or is it the one which is actually served on the party, though
that be an alias or pluries or subsequent writ ? We may
apply the language to either, and should apply it to the one
which will best subserve the objects of the statute, for we
may safely assume that that was the one intended by the
legislature. In Downey v. Smith, 13 111. 671, we said : " The
object of the statute is to hasten proceedings, and not allow
a plaintiff to keep a defendant attending on court, from term
to term, without apprising him of the nature of the complaint
against him." If this be the object of the law, and this will
1863.] Smith v. Miller et ux, 157
Syllabus.
not be doubted, then, beyond all question, the process referred
to, is the one which is served on the defendant. No litter
case than the one at bar could be found to illustrate this. The
action was commenced to the September term. Three days
before the next, the October term, the declaration was tiled.
The writ which was served on the defendant, was returnable
to the May term following, the January term having inter-
vened, and the default was not taken till the June term
following. Mow, what delay or inconvenience could have
occurred to the defendant because the declaration was not
filed ten days before the October term, when he was not
required to appear and answer it till the May following?
None, of course. It may be said that he might have heard
of the pendency of the action, and entered his appearance,
and thus hasten the proceeding. He might have entered his
appearance even at the first term, and if desirous of seeing the
declaration, the court, in its discretion, might have ordered
the plaintiff to file the declaration in a reasonable time. But
all these speculations are vain and foreign to the inquiry, for
they do not teach us which writ is intended by the statute.
That we must learn by studying the objects and purpose of
the law, and these we have seen are best subserved by taking
the one upon which the defendant is brought into court, and
hence this declaration was filed in time.
The judgment is affirmed.
Judgment affirmed*
Ezekiel S. Smith
v.
Youngs W. Miller and Polly Ann Miller.
1. Homestead— mode of release. Where husband and wife execute a
deed or mortgage upon their homestead, in order that it shall operate aa
* release of their right thereto, it must appear from die certificate of ac-
knowledgment, that the wife has specifically released her right to clains
the benefits of the homestead act.
L58 .Smith v. Miller et ux. [April T.
Statement of the case.
2. Without it so appears, the deed or mortgage will be inoperative, as
a release of that right ; the signature and acknowledgment of the wife to
she release, is a condition to the alienation of the homestead in all cases ;
her release of the right of dower in the premises, will not suffice. The
;ase of Vanzant v. Vanzant, 23 111. 536, upon this question, is approved.
3. Ejectment— homestead right a bar. The defense that the deed or
mortgage does not operate as a release of the right of homestead, may be
interposed as a bar in an action of ejectment against the grantors or mort-
gagors. Patterson v. Kreig, 29 111. 514, approved.
4. And the fact that the premises were of value exceeding one thousand
dollars, does not at all weaken the defense, as a bar to a recovery in eject-
ment.
5. Homestead — excess of value — ivhen and how made available. Though
a mortgage be inoperative to pass the homestead right, yet if the premises
are of greater value than one thousand dollars, it is binding ; and upon
foreclosure, that excess may be reached by a division, or, if the premises
are indivisible, by a sale in the mode prescribed by the statute.
Writ of Error to the Circuit Court of Cook county ; the
Hon. George Manierre, Judge, presiding.
This was an action of ejectment instituted in the court
below, by Ezekiel S. Smith against Youngs W. Miller and
Polly Ann Miller, to recover lot number one, and the north
half of lot number two, in block twenty-nine, in the village of
Dunton, Cook county.
The plaintiff sought to recover upon a mortgage on the
premises, which had been previously executed to him by the
defendants, which contained the usual words "grant, bargain,
sell and convey," and the following habendum clause :
"To have and to hold the same, together with all and
singular the tenements, hereditaments, privileges and appur-
tenances thereto belonging, or in any wise appertaining ; and
also, all the estate, interest and claim whatsoever in law as
well as in equity, which the party of the first part have in and
to the premises hereby conveyed unto the said party of the
second part, his heirs and assigns, and to their only proper
use, benefit and behoof."
There were no words in the instrument expressly releasing
any homestead right which the mortgagors might have in the
premises.
1863.] Smith v. Miller et ux. 159
Statement of the case.
The certificate of acknowledgment was as follows :
«« STATE OF ILLINOIS, )
cook county. f s ' 1, Win. b. bcoville, a justice 01 the
peace, in and for said county, in the State aforesaid, do here-
by certify, that Youngs W. Miller, and Polly Ann, his wife,
personally known to me as the persons whose names are
subscribed to the annexed mortgage, appeared before me this
day in person, and acknowledged that they signed, sealed and
delivered the said instrument of writing, as their free and
voluntary act, for the uses and purposes therein set forth ;
and the said Polly Ann Miller, wife of the said Youngs W.
Miller, having been by me examined separate and apart, and
out of the hearing of her husband, and the contents and mean-
ing of the said instrument of writing having been by me made
known and fully explained to her, acknowledged that she had
freely and voluntarily executed the same, and relinquished
her dower to the lands and tenements therein mentioned,
without compulsion of her said husband, and that she does not
wish to retract the same.
" Given under my hand," etc.
The debt, to secure which the mortgage was given, was
contracted subsequent to the fifth day of July, 1851 ; and not
for the purchase price of the property, or any part thereof,
nor for any improvements on the property. At the time of
the execution of the mortgage, the premises were the home-
stead of Miller, who, with his family, resided thereon from
that time, continuously up to the time of the trial in the court
below ; and the defendants set up their homestead right as a
bar to this action.
It appeared that the premises were of value, exceeding one
thousand dollars.
The counsel for the plaintiff presented to the Circuit Court
the following points of law, as governing the determination
of the cause, to wit :
1. That the said Youngs W. Miller, being the owner of
the premises described in plaintiff's declaration, in fee simple,
and the said defendants, Youngs W. Miller, and Polly Ann
Miller, his wife, having, in mortgage (a copy of which is in
evidence), bargained, sold and conveyed the said premises,
160 Smith v. Miller et ux. [April T.
Opinion of the Court.
and also all their "estate, interest and claim whatsoever
therein, in law as well as in equity," to the said plaintiff, said
defendants cannot, in this action, have or maintain their claim
to hold said premises as their homestead under the " Home-
stead Act " of the State of Illinois.
2. That this action, being in ejectment and for the purpose
of obtaining possession of said premises, and the " Homestead
Act " of Illinois providing that premises claimed as a home-
stead, shall be " exempt from levy and forced sale " only, the
said defendants cannot deprive the said plaintiff of his right
to the possession of said premises under the said mortgage.
The court below decided the questions of law against the
plaintiff; the issue was found for the defendants, and judgment
accordingly. The plaintiff now questions the correctness of
the ruling of the Circuit Court, alleging that the court erred
in not holding the law governing the case as stated in the
points of law presented by the plaintiff', and in not directing
judgment to be entered for the plaintiff, in accordance with
the law, as stated in the points thus presented.
Mr. E. A. Stores, for plaintiff in error.
Mr. John W. Clyde, for defendants in error.
Mr. Justice Walker delivered the opinion of the Court:
This was an action of ejectment for the recovery of the
premises in controversy, under a mortgage. It was executed
on the 21st of July, 1859, by defendants in error, and matured
two years after date. Mrs. Miller joined in the mortgage
and acknowledgment, but only relinquished her right of
dower by the acknowledgment. It appears by the agreed
case, that the mortgaged premises, at the time the mortgage
was executed, was the homestead of the defendants in error,
and that they resided on the same from that time until, and
after, this suit was instituted. That Youngs W. Miller was
the head of the family residing with the same. That the mort-
gage was not given to secure the purchase money, or any part
thereof, for the premises, or for improvements made thereon.
1863.] Smith v. Millek et ux. 161
Opinion of the Court.
The homestead exemption was claimed, and relied upon as a
defense to the action, which was allowed by the court, and a
judgment rendered in favor of the defendants.
In the case of Boyd v. Cudderback, decided at the present
term, the decision in the case of Vanzant v. Vanzwnt, 23
111. 536, was adopted, where it was held, that it must appear
from the certificate of acknowledgment, that the wife has
specifically released her right to claim the benefits of the
homestead act. That without it so appeared, the deed or
mortgage was inoperative as a release of that right. That, as
the act has made the signature and acknowledgment of the
wife to the release a condition to the alienation of the home-
stead in all cases, her release alone of the fee in the premises
does not suffice. The acknowledgment in that case was the
same as in this, and it was held not to be in compliance with
the statute.
But it was urged, that it could not be interposed in an action
of ejectment. This question was presented and determined
in the case of Patterson v. Kreig, 29 111. 514. It was there
held, that under the amendatory act of 1857, the wife being
required to subscribe and acknowledge the instrument in
connection with her husband, as conditions to the alienation
of the homestead, if the deed did not comply with the statute,
it might be insisted upon to bar a recovery of the premises.
That the amendment enlarged the operation of the statute to
such an extent as to apply to deeds and other conveyances.
That case is decisive of this.
In this case it appears, that the premises were of greater
value than one thousand dollars. To the extent of that excess
the mortgage is binding, and on a foreclosure, that excess
could be reached by a division ; or, if the premises were
indivisible, by a sale in the mode prescribed by the statute.
Or if a judgment were recovered on the indebtedness, a sale
could perhaps be had under the statute, in the manner it has
provided. But inasmuch as the mortgage as executed was
insufficient to release the premises from the right to the benefit
of the homestead, act, it was properly allowed as a bar to a
recovery in ejectment, and the judgment must be affirmed.
Judgment affirmed,
21— 31st III.
162 Banks v. Banks. [April T.
Briefs of Counsel.
George O. Banks
v.
Louisa L. Banks.
1, Service op process. It is sufficient service of a summons in chan
eery, where the defendant indorses upon it his written acknowledgment
that he has received a copy of the writ.
2. Same — proof thereof . And the recital in the decree that it appeared
to the court that the defendant had been duly served with process, is sat-
isfactory proof that the defendant did make the indorsement.
Writ of Error to the Recorder's Court of the city of Peru ;
the Hon. William Chumasero, Judge, presiding.
This was a bill in chancery exhibited in the court below by
Louisa L. Banks, the defendant in error, against George O.
Banks, the plaintiff in error.
The bill was taken for confessed in the Recorder's Court,
and a decree rendered accordingly, and the only question
presented upon the record is, as to the sufficiency of the service
of process, or, of the evidence of such service. The facts are
presented in the opinion of the court.
Mr. G. S. Eldridge, for the plaintiff in error, presented the
following points and authorities :
I. The court never acquired jurisdiction over the person
of the defendant, so as to authorize it to render the decree.
1. There was no legal service of the summons, and the
decree is based solely upon the indorsement upon the back of
the summons, purporting to be an acknowledgment of service
by the defendant below, which was not proved in any way to
have been executed by him, and the court could not, judicially
take notice of the genuineness of the signature thereto.
Ohickering v. Pailes, 26 111. 507 ; Jackson v. Speed, 1 Mon.
22 ; Peers v. Carter's Heirs, 4 Litt. 268 ; Hudson v. Brendeg,
1863.] Banks v. Banks. 163
Briefs of Counsel.
1 Howard (Miss.) 106; Bozman v. Brower, 6 Howard, 43;
Davis v. Jordan, 5 Howard, 205 ; Divilbis v. Whitman, 20
111. 425.
2. The record must show, affirmatively, that the court ac-
quired jurisdiction over the person of the defendant, to render
the decree valid, and no presumptions can be indulged in,
based upon the decree alone to support it. The clerk has cer-
tified all that transpired in the court below, and from which
it appears, that the only evidence of the service of the process
was, the supposed acknowledgment indorsed upon the back
of the summons, the execution of which was not proved in
any manner. JRandall v. Songer, 16 111. 27.
3. Whatever presumptions, if any, might be indulged in to
support this decree, if sought to be attacked collaterally, they
certainly can have no weight when the case comes directly be-
fore this court for review.
II. But I insist further, that under our statute the court can
only acquire jurisdiction over the person of the defendant, in
the manner therein prescribed, or through the formal appear-
ance of the party in court, and cannot base its jurisdiction
upon affidavits, or other collateral proof. The question of ju-
risdiction is a vital one, and the statute has defined the manner
in which it may be acquired, and unless the party voluntarily
comes into court, and in some manner submits himself to its
jurisdiction, the court can only acquire that jurisdiction in the
manner prescribed by the statute. In some States, service of
process may be proved by affidavit, but only by express pro-
vision of statute can it be done. The decree in this case
should be reversed. Scates' Comp. 138, Sees. 1 to 11 inclu-
sive, and 150, Sec. 2.
Messrs. Leland & Blanchard, for the defendant in error.
The object of service is to give legal notice of the suit,
that the party may, if he will, be heard in his defense. This
is accomplished by his acknowledgment of service; or, in
other words, by his acknowledgment that he has had notice,
and his implied admission of the legal effect of actual service.
164 Banks v. Banks. [April T.
Opinion of the Court.
Norwood v. Riddle, 1 Ala. 195 ; Lewis v. State Bank, 4 Pike
(Ark.) 443 ; Mete v. Bremond, 13 Texas, 394 ; Maker v.
Bull, 26 111. 348.
If it was necessary to prove the signature of the defendant
to his written acknowledgment on the summons, the recital in
the decree that it " appeared to the court that the respondent
had been duly served with process," was sufficient evidence
that it was proven in the court below.
We think the case of Timnierman v. Phelps, 27 111. 496,
settles this question.
Mr. Justice Bbeese delivered the opinion of the Court:
The only question presented by this record is as to the ser-
vice of the summons in the case. The summons is in the
usual form, on which is this indorsement :
" I acknowledge service of the within summons upon me, as
required by law, this 9th day of May, 1861, by the same being
read to me, and receiving a copy of the same. Geokge 0.
Banks."
In chancery, the service of a summons is by copy. Scates'
Comp. 139. Here is the written acknowledgment on the sum-
mons, signed with the name of the defendant in the suit, that
he received a copy of it on the ninth day of May, 1861.
The summons is dated the eighth of May. The defendant
was ruled to answer on the 20th of May, and on his failing so
to do, the bill was taken for confessed, and the matters thereof
decreed by the court.
It is now insisted that the court had no jurisdiction over the
person of the defendant, for the reason the summons was not
served upon him. This is a fundamental fact, and if it does
not exist, the decree was erroneous.
The decree recites, " it appearing to the court that said re-
spondent had been duly served with process more than ten
days before the first day of the present term of court, no an-
ewer filed, it is ordered that the bill be taken for confessed."
We cannot distinguish this case, in principle, from the case
of Timmerman v. Phelps, 27 111. 496. That was a case where
18C3.] Banks v. Banks. 165
Opinion of the Court.
the process was returned served by a deputy sheriff, without
using the name of the sheriff. The decree was rendered by
default, and the error assigned was this service of the process.
The decree recited, that it appeared to the court that process
had been duly served on the defendant. This court said, that
the Circuit Court had substantially found, that the sheriff was
dead at the time this summons was served, for it found that
the summons was duly served, and that could only be so when
it was made to appear to the court that the sheriff was dead.
So in this case, the court having found the summons was
duly served, it could only be by it having been made to appear
by proof, which need not be preserved in the record, that the
acknowledgment of service was in the handwriting of the de-
fendant, and was his act. This finding, as in that case, is
conclusive, unless the defendant, on a motion to set aside the
default, would show that the court unadvisedly " found the
fact."
In the case of Maker v. Bull, 26 111. 351, the service relied
on was this : " Served the within writ on the within named
Hugh Maher by informing him of the contents of the within
writ, and he accepting the service the 12th of October, 1860."
This court said service was not sufficient, but it might have
been sufficient if he had acknowledged service in writing upon
the process. Here the service is acknowledged in the most
formal manner on the process and in writing, and we think it
is sufficiently proved, by the recital in the decree. The
decree must be affirmed.
Decree affirmed.
166 Conkling v, Yail. Same v. Same. [April T.
Statement of the case.
Henry R. Conkling
v.
John W. Vail.
Same
v.
Same.
1. Consideration. If a party, being indebted to one, is induced by
false representations to execute his note to another, for such indebtedness,
the note is without consideration.
2. Assignee before maturity — want of consideration. But if the
payee of such note assign it before maturity, to a third person, to satisfy
a pre-existing debt, the assignee having no notice of a want of considera-
tion in the note, the defense will not avail against him.
Appeal from the Circuit Court of the county of La Salle ;
the Hon. Madison E. Hollister, Judge, presiding.
This was an action of assumpsit commenced by John W.
Yail against Henry R. Conkling, in the Circuit Court of
Grundy county, and removed upon change of venue to the
Circuit Court of the county of La Salle. The suit was brought
to recover the amount of a promissory note, executed by
Conkling to Daniel W. Edgerton, on the first day of October,
1851, for the sum of $175, payable two years after date, and
assigned by Edgerton to Yail, the plaintiff below, before
maturity.
The two cases present precisely the same question, which
is, the sufficiency of the defense set up in the second plea.
That plea was substantially as follows :
That on and prior to the first day of January, A. D. 1850,
John Moore and Horace Moore were the owners in fee of the
north-east quarter of Section 9, 34, 7 east 3 P. M. ; but
although the legal title was in them, they really held the same
as security for an indebtedness from one Daniel W. Edgerton
1863.] Oonkllng v. Vail. Same v. Same. 167
Statement of the case.
to them. On said January 1st, 1850, by an arrangement be-
tween said Edgerton and said John and Horace Moore and
the plaintiff, said John and Horace Moore, in discharge of
$400 of the indebtedness of Edgerton to them, conveyed, by
their deed of that date, to said John W. Vail, the south half
of said quarter section of land, and the said Yail gave to
said Edgerton a contract to convey the said south half to said
Edgerton, upon being paid said four hundred dollars. On the
28th of July, 1851, the legal title to said south half of said
quarter section of land so being in said Yail, and the legal
title to the north half of said quarter section being still in
said John and Horace Moore, as security for the remainder
of the debt due them from said Edgerton, the said Edgerton
and this defendant made and entered into a contract in writing.
That said Edgerton doth bargain and sell unto appellant the
north-east quarter of Section 9, 34, 7 east 3 P. M. ; also, two
acres of timber land in Section 19, 34, 8 east 3 P. M., etc.
Said appellant agreed to pay unto said Edgerton $1,150 — •
$800 October 1st, 1851, balance in two yearly equal install-
ments, to be secured by a mortgage on said premises ; Edger-
ton to make title to appellant when $800 paid ; possession to
be given on or before the second day of August, 1851, on
payment of $100, part of the $800.
August 2, 1851. $100 paid.
August 14, 1851. Said John W. Vail, then residing in
Vermont, conveyed to Orson B. Galusha, for expressed con-
sideration of $400, said south half of said quarter section.
September 8, 1851, Galusha, for $400, conveyed said south
half of said quarter section to the appellant.
September 20, 1851. Said John and Horace Moore con-
veyed the north half of said quarter section to the appellant.
The deed from Vail to Galusha was without consideration ;
that Galusha, in receiving said conveyance and conveying
to appellant, acted as the agent of Vail, and was a mere
nominal holder of the title, for convenience in transacting
the business of his agency.
At the time of the conveyance to appellant, by Galusha,
the appellant actually paid the sum of $400, in cash, which
was all the consideration Vail was entitled to.
168 Conkliin'g v. Yail. Same v. Same. [April T.
Statement of the case.
There was due from Edgerton to said John and Horace
Moore, at the time they executed the deed aforesaid to ap-
pellant, $650, and at the time of the execution of said deed,
appellant paid to said John and Horace Moore $300 in cash.
After the payment of said $100 to Edgerton, $400 to Galusha
for Yail, and at the time of the payment of said $300 to
John and Horace Moore, making $800, it was agreed between
Edgerton, John and Horace Moore, and appellant, that the
remaining $350, mentioned in said agreement as that to be
secured by a mortgage, should be paid by letting the said
John and Horace Moore have the mortgage contemplated in
said agreement. The closing of said agreement by the prep-
aration and execution of said mortgage, was carelessly neg-
lected till March, 1852; Edgerton, in the meantime, had
applied to his own use the $400 which belonged to Vail, and
which Galusha had permitted him to take. March, 1852,
Edgerton, and Atherton, a lawyer in Morris, insisted that it
was necessary that the notes should run to Edgerton, as the
contract was made with him, and prevailed upon appellant to
execute the mortgage and notes (one of which is that declared
upon) to said Edgerton, instead of to said John and Horace
Moore, with the fraudulent motive, on the part of said Edger-
ton, to assign the notes and mortgage to said Yail, to make
good, in part, the money of said Yail so appropriated by
Edgerton to his own use. Thereupon Edgerton, for no other
consideration, took and immediately assigned said notes to
Yail, and they were left with said attorney (Atherton) to be
collected for Yail.
The plaintiff below interposed a demurrer to this plea, and
the demurrer was sustained. The other pleas in the cause
were withdrawn, and no further defense being made, a judg-
ment was entered in the Circuit Court in favor of the plaintiff,
Yail.
Conkling, the defendant below, thereupon took this appeal,
and by his assignment of errors, presents the question, whether
the plea set up a sufficient defense to a recovery on the note
sued upon.
1863. J Conkling v. Yail. Same v. Same. 169
Opinion of the Court.
Messrs. Leland & Blanch ard, for the appellant.
Mr. B. 0. Cook, for the appellee.
Mr. Chief Justice Caton delivered the opinion of the
Court :
Upon a more careful consideration of the facts stated in
these second pleas, which are somewhat complex, we are
satisfied now that they do not present a defense to this
action. They show that Yail had been paid the four hun-
dred dollars due him on the land, and he had no further
claim on Edgerton upon the contract in reference to the land.
That arrangement was ended, and forever closed when Conk-
ling, as the debtor and agent of Edgerton, paid the money to
Galusha, the agent of Yail, and received a conveyance from
him. Then, we say, that debt was paid, and that matter
ended. After that, Galusha, instead of sending this money to
Yail, his principal, let Edgerton have it, who appropriated it
to his own use. This made him the debtor of Yail anew, but
it did not revive the old indebtedness. He occupied the same
position towards Yail that a stranger would, whom Galusha
had let have Yail's money. There was really no necessity ot
complicating the case with a history of the previous transac-
tions, so far as this matter was concerned. Then Conkling,
who had by the previous arrangement become the debtor of
the Moores for the $350, which he had originally agreed
to pay Edgerton for the land, whereby he had ceased to be the
debtor of Edgerton, was persuaded to make his notes and
mortgage to Edgerton for the $350, instead of to the Moores,
and Edgerton then, before it was due, assigned this note to
Yail, in part satisfaction of the four hundred dollars he owed
him.
To condense the case still more : Edgerton owed Yail
$400 for money had and received. Conkling owed the Moores
$350, for which he had agreed to give them his bond and
mortgage. By means of improper and untrue representations,
22— 31st III.
170 Richajrdson v. The People. [April T.
Syllabus.
he was induced to make his notes and mortgage to Edgerton
for the $350 instead of to the Moores, hence these notes were
without consideration. Edgerton assigned one of these notes
to Vail before it was due, and for a good consideration.
Now does this state of facts constitute a valuable defense to
the note in the hands of Vail ? He received it before due,
and without notice that it was given without consideration,
and hence is entitled to recover upon it. The demurrer was
properly sustained. The judgment is affirmed.
Judgment affirmed.
Andrew A. Richardson
The People of the State of Illinois.
1. Continuance— ifegm'Mfes of affidavit — diligence. Upon an application
for the continuance of a cause on the ground of absence of material wit-
nesses, the affidavit, without showing any diligence in trying to procure
their attendance, set forth that the witnesses enlisted as private soldiers in
the army of the United States, at a given time, and were still in the ser-
vice, and had ever since their enlistment, been absent from the county.
This was not enough ; it should have been shown where the witnesses were
at the time the application was made, so that the court could know that
they were not within its jurisdiction.
The affidavit should show, either that efforts had been made to procure
the attendance of the witnesses, or that such efforts would have been inef-
fectual for that purpose.
2. The affidavit should also show that there is a reasonable prospect of
obtaining the testimony of the witnesses at some future time.
3. Depositions — in cases of misdemeanors. In cases of misdemeanors,
the depositions of absent witnesses may be taken by consent.
4. Depositions — witlilwlding consent — continuance. So, in a case of
prosecution under the Bastardy Act, if it appear that the attendance of
material witnesses on the part of the defendant cannot be procured, he
may offer to join in a commission with the opposite party to take their
depositions ; and, it appearing that due diligence has been employed, if
such offer be not accepted, the court, in its discretion, may grant continu-
from term to term, until the other party will join in the commission.
1863.] Richardson v. The Peofle. 171
Statement of the case.
5. If , in such case, the commission be joined in by both parties, then
the court will continue the cause until the next term.
Appeal from the Circuit Court of the county of La Salle ;
the Hon. Madison E. Hollister, Judge, presiding.
This was a proceeding in the court below, in the name of
The People, etc., against Andrew Richardson, under the
statute in relation to bastardy.
At the November term, 1862, of that court, the defendant,
Richardson, entered his motion for a continuance, and in
support thereof, presented the following affidavit :
41 The People, etc. )
v. V La Salle County Circuit Court* Nov. Term* A. D. 1862.
Andrew A. Richardson. ;
" Andrew A. Richardson, the defendant in the above enti-
tled cause, being duly sworn, saith, that John Johnson and
Ole Halverson are each material witnesses for defendant on
the trial of the above entitled cause ; (setting forth the facts
expected to be proven by the witnesses.) John Johnson is
about twenty-two years old, and said Halverson is a man
about twenty years old ; that he knows of no other witnesses
by whom he can prove the same facts. Both said Johnson
and Halverson are now in the service of the United States, in
the third regiment raised by the Board of Trade of Chicago.
Affiant believes it to be the 82d Regiment of Illinois Volun-
teers. Affiant does not know where said regiment now is ;
but both of said witnesses enlisted as private soldiers in said
regiment in the montli of September last, and have ever
since been absent from this county, and by reason of the fact
that said witnesses are in the service of the government as
soldiers, it has been impossible for affiant to procure their
attendance at this term of the court.
" ANDREW A. RICHARDSON.
"Subscribed and sworn to," etc.
The Circuit Court overruled the motion for a continuance ;
and exception was taken. The trial of the cause being pro-
ceeded with, resulted in a verdict that the defendant was
guilty of the charge of bastardy.
172 Richardson v. The People. [April T.
Opinion of the Court.
The defendant thereupon moved for a new trial, which waa
denied; and judgment entered against him, in pursuance of
the verdict of the jury. He took this appeal, and now insists
that the Circuit Court erred in overruling his motion for a
continuance ; and in refusing to grant a new trial.
Mr. J. B. Eice, for the appellant, contended that the affida-
vit for a continuance was sufficient under the act of May 3rd,
1861. Sess. Acts, Ex. Session, p. 26.
Messrs. Gray, Avery & Bubhnell, for the appellees, in-
sisted that the affidavit did not show sufficient diligence.
Mr. D. P. Jones, Stated Attorney, presented the following
points and authorities :
The motion for a continuance was properly overruled,
1. Because the affidavit does not show that the witnesses
were within the reach of the process of the court. 8 East,
37; 3 Burrows, 1514 ; 1 Wm. Biackstone, 514; 1 Mass. K. 6;
2 Iialstcad E. 220; 3 Brevard, 304; 1 Const. R. 234; Sum-
ner's R. 19.
2. Because no facts are set forth showing diligence, or that
efforts to procure the attendance of the witnesses would have
been unavailing. 5 Leigh E. 775.
3. Because it does not appear that the defendant expected,
or was able, to procure the attendance of the witnesses at any
succeeding term. 9 Dana, 302.
Mr. Justice Walker delivered the opinion of the Court:
It is objected, that the court below erred in overruling
the appellant's motion for a continuance. This depends
upon the sufficiency of the affidavit upon which the appli-
cation was based. The affidavit does not state that any efforts
had been made, or, if made, that they would have been in-
effectual to have procured the attendance of the witnesses.
It fails to state where they were at the time of the application ;
1863.] Eichakdson v. The People. 173
Opinion of the Court.
but simply, that they were in service in the United States
army. For aught that appears, they may have been within
the jurisdiction of the court. The court cannot, judicially,
know that the regiment to which they are attached, is beyond
the reach of its process.
Again, there is no statement that affiant has any expectation
of procuring the testimony of these witnesses by the next
term of the court. It would be erroneous to grant a contin-
uance unless there was a reasonable prospect of obtaining
the desired evidence, at some future time. Unless the party
can state that he has reasonable grounds to believe, that it
can be made available, the party is in the situation of any
party, who is unable to prove a fact for the want of evidence.
The object of granting a continuance is, that justice may be
had thereby, and not merely to prevent a recovery against
the party. We think this affidavit fails to show the employ-
ment of proper diligence to have authorized the court to allow
the motion.
If it had appeared that the witnesses were so situated that
their attendance could not be procured, the appellant might
have offered to join in a commission, to take their depositions.
If it had appeared that the evidence was material, and that
due diligence had been employed, and such an offer had been
made, the court in its discretion might, in case the other party
had refused to join in the commission, have granted continu-
ances from term to term until they did join in the commission.
And if such an application and offer had been made, and the
other party had accepted it, the court would have continued
it until the next term. In cases of misdemeanors, depositions
of absent witnesses may be taken by consent. The King v.
Mcurphew, 2 Maul. & Sel. 602 ; Roscoe's Crim. Ev. 55.
The appellant failed to show sufficient grounds for a contin
uance, and the judgment is affirmed.
Judgment affirmed*
174 Pardee v. Ltndley. [April T.
Syllabus.
Theeon Pabdee
V.
Wilson Lindley
1. Evidence — certified copy of deed. A certified copy from the record,
of a deed, is admissible in evidence, upon the affidavit of the proper person,
that the last he knew of the original deed, it was in his possession, but is
lost ; that he had made diligent search therefor, in the place where it
ought to have been, and in places where it was probable it might have been,
in good faith, with a view of finding it, but was unable to find or produce it.
2. Secondary evidence — preliminary proof— by whom made. Where
the deed, of which a copy is sought to be given in evidence, was made to
an antecedent grantee, the preliminary proof of the loss of the original
deed may be made by such grantee, although he be not a party to the suit,
or his agent or attorney.
3. Assignment — note and mortgage. The assignment of a note secured
by a mortgage, carries the security with it.
4. Assignment — power of sale in mortgage. And where the mortgage
gives to the mortgagee or his assigns, power to sell, upon default in pay-
ment, an assignment of the note secured by the mortgage, will vest ,he
power of sale in the assignee ; such power thereby passes from the mort-
gagee, and can no longer be executed by him.
5. Powers — irrevocable. The power of sale in such case, is coupled
With an interest, and is irrevocable.
6. Assignment of note in the hands of payee. Although the payee of a
note may have written an assignment upon the back of it, yet if it remains
in his possession, he will be deemed not to have parted with his interest in
the note ; no such indorsement would conclude him as to the fact of an
assignment.
7. Whatever writing the payee of a note may have put upon it, he may,
while it remains in his hands, erase, or otherwise render inoperative.
8. Evidence in ejectment. Where the plaintiff in ejectment claims un-
der a deed executed in pursuance of a sale made by a mortgagee under a
power of sale contained in the mortgage, it is not necessary to give in evi-
dence the note which was secured by the mortgage.
9. Homestead — against what sales protected. Under the original act of
1851, relating to homestead exemption, the homestead was protected only
against a levy and forced sale, under the process or order of a court of law
or equity, where it had not been properly released.
10. But under the amendatory act of 1857, it is protected against all
sales, whether compulsory or voluntary ; and against all modes of convey,
ance, whether by deed absolute, or a mortgage, unless it shall be released
in the mode prescribed in the act.
1863.] Pardee v. Lindley. 175
Statement of the case.
11. The homestead is a right cast upon the wife for her benefit, and thai
of her children, of which she, and they, cannot be deprived, in any other
way than that prescribed in the act itself.
12. Nor does the law require her or her husband to do any act to secure
this right. They are both passive, whilst the law silently but effectually
throws around them its protection. As long as the premises are occupied
as a homestead, a deed executed by the husband without the release in the
statutory mode, of the husband and his wife, can have no effect to deprive
them of the homestead.
13. Homestead — when a defense. In any action by which it is sought io
deprive them of this right, or to eject them from the premises to which the
right attaches, it can be interposed as a defense.
14. Ejectment— recovery of part. Where the homestead right is set
up as a defense in ejectment, and there is a part of the premises sought to
he recovered to which the right does not attach, such part may be recovered
in the same action.
15. EviDESc^—ejectment — value of homestead. Where it is set up as a
defense, in ejectment, that the defendant holds a right of homestead in the
premises, the value of the premises is immaterial.
16. Altekation of deed. In copying a deed of trust executed by
Wilson Lindley, into a deed which was executed by the trustee in pursuance
of a sale of the premises made by him under the deed of trust, it appeared that
James Lindley had been written in that part of the deed of trust so copied
which granted the power of sale, but the name James had been erased, and
Wilson inserted, in a different handwriting from the rest of the deed ; but
the alteration did not vitiate the deed; writing the name James was deemed
only a clerical error in copying ; and moreover, the whole deed showed
Wilson to be the granting party.
Writ of Error to the Circuit Court of the county of
McLean ; the Hon. Charles-Emerson, Judge, presiding.
This was an action of ejectment instituted in the Circuit
Court, by Theron Pardee against Wilson Lindley, to recover
the possession of certain premises situate in the county of
McLean.
The plea of the general issue being interposed, the cause
proceeded to trial.
The plaintiff, having proven that the defendant was in pos-
session of the land described in the declaration, at the time of
the commencement of the suit, offered in evidence a certified
176 Pardee v. Lindley. [April T.
Statement of the case.
copy from the record, of a deed of trust from Lindley, the
defendant, to Asahel Gridley ; and as a foundation for the
introduction of such secondary evidence, the plaintiff presented
an affidavit of said Gridley as follows :
"Asahel Gridley, being duly sworn, deposes and says,
that he was the owner and holder of a certain deed of trust,
made on the first day of April, 1858. by Wilson Lindley, of
McLean county, Illinois, to this affiant, as trustee, and in
trust for certain purposes therein expressed, wherein the said
Lindley conveyed to this affiant, the following real estate, to
wit : " (setting out the lands as in the copy offered in evidence) ;
" that said deed of trust was in the possession of this affiant
on or about the 20th day of November, A. D. 1861, and about
the time this affiant advertised said land under said trust deed;
that since that time he has lost or mislaid said trust deed, or
the same has been abstracted ; that since the loss of said deed,
this affiant has carefully and diligently searched all places
where he keeps his papers of that kind ; that he has carefully
searched all places in his dwelling-house, in his private apart-
ments in the bank, and the entire vault, and all other places
in the bank where he kept, or where any person or persons
kept papers of any description ; *that the last he knew of said
deed, it was in the possession of this affiant.
" This affiant further swears, that he has made careful ar d
diligent personal search in all places where he, or any person
connected with him doing business, keep or have kept their
papers since the disappearance of said deed, so that for these
reasons this affiant says he has lost the said deed, and that the
said deed cannot now be produced, nor is it in the power of
this affiant to produce this said deed.
" Signed," etc.
The defendant objected to the reading in evidence the
certified copy of the deed of trust upon the ground,
1. That there was no sufficient excuse shown for the non-
production of the original deed ; and
2. That the deed did not purport to convey the lands of
the defendant ; which objections were overruled and the copy
1863.] Pardee v. Lindley. 177
Statement of the case.
of the deed was allowed to be read in evidence ; to which the
defendant excepted.
The copy thus read in evidence, was of a deed of trust
from Wilson Lindley to Asahel Gridley, by which was con-
veyed certain lands, and among others, those described in the
plaintiff 's declaration.
The deed was dated on the first day of April, 1858, and
recited that it was made to secure the paymant of a promis-
sory note of that date, executed by Lindley and payable to
Gridley, for the sum of forty-two hundred and fifty-four
dollars and seventy-live cents, due and payable one year
thereafter ; and authorized Gridley, the trustee, to make sale
of the premises in the mode and upon the conditions therein
prescribed.
The plaintiff, against the objection of the defendants, was
allowed to introduce in evidence the note to secure which the
deed of trust was executed. It was proven that certain
credits on the note were made to account for and appropriate
the proceeds of sales of land under the trust deed, made by
Lindley to Gridley, and to show that the note was then un-
paid. Upon the back of this note was the following indorse-
ment : " Pay A. Gridley & Co. A. Gridley."
A notice of the sale made by Gridley under the deed of
trust was introduced, and it was proven that such notice had
been published in accordance with the requirements in the
deed.
The deed from Gridley, as trustee, to David J. Perry, for
the land in controversy, was offered in evidence by the plain-
tiff, and objected to by the defendant.
This deed recited the deed of trust from Lindley to Gridley,
and was objected to upon the grounds, first, that it appeared
to be altered in a different handwriting, by erasing the name
James, and inserting Wilson in that part of the deed of trust
recited therein, which gives the power of sale ; second,
because the deed does not recite the advertisement of the sale
made under the deed of trust, but only refers to a newspaper
advertisement pasted on a blank space in the deed ; third
that the deed did not show upon its face that it was made in
23— 31st III.
178 Pardee v. Lindley. [April T.
Statement of the case.
pursuance of the powers contained in the trust deed ; and
fourth, that it appeared from the note that it had been
assigned before the sale, and therefore Gridley had no power
to make the sale.
The Circuit Court, overruled all these objections, and
allowed the deed to be read in evidence ; and exception was
taken.
The introduction of a deed of conveyance of the same
lands, from Perry to Theron Pardee, closed the evidence in
chief on the part of the plaintiff.
The defendant then proved that he was the head of a
family, and resided with the same, upon the lands in the
declaration described, and had so resided on said land as a
homestead for twenty-five years. To this evidence the plain-
tiff objected, upon the ground that it was irrelevant to the
issue ; but the court overruled the objection, and the plaintiff
excepted.
The defendant here closed his evidence.
The plaintiff thereupon proved that said lands were worth
more than one thousand dollars, and that they could be
divided without injury to the estate, and claimed that the jury
should set off to the defendant the dwelling-house and lands,
supposed to make, in value, one thousand dollars, and that
they should find the defendant guilty as to the residue of the
lands.
The court overruling the defendant's objection to this
evidence, an exception was taken.
The defendant then offered to prove an outstanding title in
one Hair, to a certain portion of the land in controversy, with
the view of asking the court to instruct the jury, that if they
believed, from the evidence, that the defendant did not own
that portion of the land at the time the deed of trust was
executed to Gridley, it could not be set aside to the defendant
as any part of his homestead ; to which the plaintiff objected.
The court sustained the objection, and refused to admit this
evidence ; to which ruling the defendant excepted.
The case was submitted to the jury, who returned a verdicty
finding the defendant guilty of unlawfully withholding from
1863.] Pardee v. Lindley. 179
Briefs of Counsel.
the plaintiff the possession of a certain part of the premises
which were not of the homestead, and not guilty as to the
residue.
The plaintiff entered his motion for a new trial, but not un-
der the statute ; the court overruled the motion, and rendered
a judgment in accordance with the verdict of the jury. The
plaintiff" excepted to the ruling of the court, and thereupon
sued out this writ of error.
Both parties assigned errors upon the record.
The plaintiff insists that the court below erred,
1. In allowing the defendant to prove that he was the head
of a family, and lived with them on the land.
2. In allowing defendant to claim and prove his homestead
right against the plaintiff.
3. In allowing the defendant, out of the land described, his
homestead of the value of one thousand dollars.
4. In not setting aside the verdict, and not allowing plain-
tiff a new trial.
The defendant assigns the following :
1. Admitting the copy of the trust deed to be read to the
jury.
2. Admitting the note to be read to the jury.
3. Admitting the deed from Gridley to Perry to be read
to the jury.
4. Admitting evidence of the value of the land.
5. Refusing to allow the defendant to prove that a part
of the land was not his ; that there was a superior outstanding
title to the same.
Mr. C. H. Moore, for the plaintiff in error, contended that
the defendant could not claim his statutory right of homestead
against his own deed to G-ridley.
The act of February 11, 1851, protected the homestead of
the debtor, of the value of one thousand dollars, from a forced
sale under execution or decree, unless he should release the
right in the mode pointed out in that act.
The amendatory act of Febuary 17, 1857, simply required
that the wife should join the husband in the release, to make
180 Pardee v. Lindley. [April T.
Briefs of Counsel.
it operative ; and the law, as thus amended, still applies only
to the same character of sales as those mentioned in the act of
1851, and can have no reference to sales made by the party
himself.
The title of the act of 1857, shows that the legislature only
intended to amend the act of 1851. They voted upon the title,
as well as the act itself. 9 Peters R. 301.
The original act having reference only to forced sales, the
amendatory act could not operate to change its effect by a
simple declaration that the legislative intention was different
from that expressed in the act amended.
Mr. R. E. Williams, for the defendant in error.
The deed of trust from Lindley to Gridley was executed
since the act of 1857 ; the grantor's wife did not join in the
deed.
No alienation can be made of the homestead, without the
joinder and acknowledgment of the wife.
The amendatory act expressly declares its object to be " to
require, in all cases, the signature and acknowledgment of
the wife, as conditions to the alienation of the homestead."
Upon the cross errors assigned, the counsel conteuded that
no sufficient foundation was laid for the admission in evidence
of the certified copy of the trust deed from Lindley to Grid-
ley.
1. Gridley, who made the affidavit, was neither the agent
nor attorney of the plaintiff, nor a party to the suit. Acts of
1857, p. 174.
2. The preliminary proof did not comply with the common
law, as the existence or genuineness of the original deed was
not shown. Mariner v. Sanders, 5 Gilm. 113; Ranking.
Crow, 19 111. 626 ; Dickinson v. Breeden, 25 111. 186.
The deed of trust did not purport to convey the lands of
Wilson Lindley, but of James Lindley. It authorized the
mortgagee to convey the lands of James Lindley ; and even if
the deed be held to have conveyed the interest of Wilson, so
that it might be foreclosed in equity, yet this power of sale in
1863.] Pardee v. Lindley. 181
Briefs of Counsel.
Gridley must be strictly construed under it. Gridley could
not convey the estate of Wilson Lindley. 4 Kent Com. 329,
330, 331.
The deed from Gridley to Perry was improperly admitted
in evidence.
1. The deed did not show upon its face that it was made
in execution of the power granted in the deed of trust; the
power granted, was to convey the interest of James Lindley ;
the deed to Perry purports to convey the estate of Wilson
Lindley. As it did not follow the power, it was void. 4 Kent
Com., supra,
2. The deed from Gridley to Perry recites a deed of trust
from Wilson Lindley to Gridley, materially varying from
that given in evidence, in this, that the deed of trust recited
in the deed to Perry, purports to grant power to sell and
convey the lands of Wilson Lindley, while the deed of trust
in evidence grants the power to sell and convey the lands of
James Lindley. 4 Kent, stipra.
The note, to secure which the deed of trust was given, waa
assigned by Gridley, the payee, to A. Gridley & Co., before
the sale by Gridley, under which Perry purchased.
The power of sale was to the mortgagee, or his assigns.
The power was irrevocable, and passed to the assignees of the
debt. Gridley, then, having transferred the power, his
attempted sale was void, and passed no title. 4 Kent's Com.
146, 147, 327 ; 2 Cowan, 195 ; 21 111. 148 ; 1 Games' Cases
in Error, 1.
The alteration of the deed from Gridley to Perry was
material ; the deed should not have been admitted in evidence
without proof that such alteration was made before the
delivery of the deed. 1 Gilrn. 489; 5 Gilm. 252; 20 111.
441 ; 23 111. 556 ; 27 111. 29 ; Greenlf. Ev. 599 ; 5 Bing. 183.
All the prerequisites to the exercise of the power of sale bj
Gridley, should be shown, by the deed itself, to have beeL
complied with, and not by a separate paper.
This deed did not recite any advertisement of the sale
except by reference to a printed slip attached ; it was there
fore void. 4 Kent's Com. 329, 330.
182 Pardee v. Lindlet. [April T.
Briefs of Counsel.
It is contended that the Circuit Court should not hare
allowed proof of the value of the land claimed as a homestead.
While the mortgage might be good as to other lands thereby
conveyed, yet as to those included in the homestead, it was
void, as it was made after the act of 1857, and the wife did
not join. Here, the plaintiff was allowed to prove the value
of the homestead at the time of trial, and it was shown to be
of value, at that time, exceeding one thousand dollars, but
this would not help the mortgage, if it were void at the time
of its execution, by reason of the homestead being then worth
less than one thousand dollars. If the deed was void in the
beginning, it could not be made good by the subsequent
appreciation in value of the land.
But if the mortgage were not void of itself, the attempt by
Gridley to sell the whole tract, entirely disregarding the right
of homestead, so far exceeded the power given by the mort-
gage, that the entire sale, as to this tract, would be avoided.
The original act of 1851, points out the mode in which the
homestead may be set apart, or sold, and that mode should
have been observed.
Again, the court below should have allowed Lindley to
prove that a. part of the land sought to be recovered, did not
belong to him, so that such part could not be set out as a
portion of the homestead.
The defendant in error desired a reversal of the judgment
below, not upon the errors assigned by the plaintiff, but for
the causes assigned by himself.
Mr. Moore, for the plaintiff in error, in reply to the points
made by the defendant.
1. Loss of deed of trust was clearly proved by affidavit of
Gridley. Gridley was the custodian and agent, to hold the
trust deed.
2. Note and indorsement were offered, to show that the
trustee had properly applied the purchase money, and to show
that the note was unpaid. Not necessary, but could do no
harm. Gridley's name on the back was a nullity, so long as
he retained the note.
1863.] Pardee v. Lindley. 183
Opinion of the Court,
3. " James " was erased and " Wilson " inserted, before the
deed was acknowledged or delivered. "Wilson" was the
correct name; other parts of the deed show it. It was
Gridley's right and duty to correct this. The word " James,"
if it is in copy of the original deed of trust, is simply a mis-
take. The name " Wilson " is in all parts of the deed but one ;
and then he signs and acknowledges it. By reading the whole
deed, the court can have no doubt about who made the deed,
and whose land was to be sold.
4. Yalue of the land ought not to have been given, because
the defendant could not claim his homestead against his own
deed. 4 Gilman, 348, and cases cited there.
5. Outstanding title could not avail Lindley ; he had been
in possession of all the land over twenty years, made his trust
deed, with covenants of warranty ; as against his possession,
his deed must prevail. Tillinghast's Adams on Ejectment,
22 ; Halst. Rep. 102.
Mr. Justice Breese delivered the opinion of the Court:
This was an action of ejectment, brought in the McLean
Circuit Court, for the recovery of the west half of the south-
east quarter of the south-east quarter of section twenty-nine,
and the west half of the east half of the north-east quarter
and the west half of the north-east quarter of section thirty-
two, in township twenty -three north, in range two east, all
lying in that county.
On not guilty pleaded, the jury found a verdict for the
plaintiff, in due form, that the defendant was guilty of with-
holding the possession of the west half of the west half of the
north-east quarter of section thirty-two, for which judgment
was entered ; and as to the residue, not guilty.
A motion was made by the plaintiff for a new trial, not
under the statute, which was overruled, and the case brought
here by writ of error.
Both parties assign errors on the record. The plaintiff
assigns for error :
1. In allowing defendant to prove that he was the head of
a family, and lived with them on the land.
184 Pardee v. Lindley. . [April T.
Opinion of the Court.
2. In allowing defendant to claim and prove his homestead
rights against plaintiff.
3. In allowing defendant, out of land described, his home-
stead of the value of one thousand dollars.
4. In not setting aside verdict, and not allowing plaintiff
a new trial.
The defendant assigns the following :
1. Admitting a copy of trust deed to be read to the jury.
2. Admitting the note to be read to the jury.
3. Admitting the deed from Gridley to Perry to be read
to the jury,
4. Admitting evidence of the value of the land.
5. .Refusing to let defendant prove that a part of the land
was not his; that there was a superior outstanding title to the
same.
Disposing of the errors assigned by the defendant, we will
proceed to consider those assigned by the plaintiif, as upon
them the controversy, for the most part, hinges.
As to the defendant's first error assigned, we see no force in
it. The witness, A. Gridley, was the grantee under the deed,
and therefore the custodian of it. His testimony is full to the
point, that he made diligent search for the deed in the place
where it ought to have been, and in places where it was
probable it might have been, in good faith, with a view to
finding it, bringing the case within the rule established in
Mariner v. Sanders, 5 Gilm. 113 ; Rankin v. Crow, 19 111. 626,
and Dickinson v. Breeden, 25 111. 186. As to the supposed
alteration of the deed by changing James to Wilson, it must
be regarded, as a copy only was in evidence, as an error of the
clerk in making the copy. The whole deed shows that Wilson
Lindley was the granting party. Hibbard v. McKindley, 28
111. 240.
The second error assigned is not relied on. The third
questions the validity of the sale by Gridley as trustee, on the
ground that it was made by him after he had assigned the
note to other parties.
It is a well-settled principle, that the assignment of a note
secured by mortgage, carries the security with it. As in this
1863.1 PARDEE V. LlNDLEY. 185
Opinion of the Court.
case, the security contained a power to the mortgagee, or his
assigns, to sell ; and the assignment of the note would havo
transferred this power also. It is a power appendant to the
estate and coupled with an interest. It is irrevocable, and is
deemed part of the mortgage security, and vests in any person
who becomes, by assignment or otherwise, entitled to the
money thus secured to be paid. 4 Kent's Com. 146. This
able commentator further says, if the power be given to the
donee and his assigns, it will pass by assignment, if the power
be annexed to an interest in the donee. Id. 327. Wilson v.
Troup, 2 Cowen, 197; Sargeant v. Howe, 21 111. 148; Van-
sunt v. Allmon, 23 111. 30, and cases there cited.
It follows from these principles, that, had Gridley actually
assigned the note to another party, this power to sell would
have passed from him, and consequently, after the assignment,
could not be executed by him. The power would vest abso-
lutely in his assignee, to be executed by him. But is there
any evidence of such assignment '( It is true, the record
shows that the plaintiff offered the note executed by Lindley to
Gridley, in evidence, on which appears this writing, " Pay A.
Gridley & Co. — A. Gridley ; " which, the defendant insists, is
an assignment of the note to A. Gridley & Co'. It does not
appear, that the note was ever delivered to A. Gridley & Co. ;
and if not delivered, but remained in the possession of the
original payee, he could erase the assignment at any time, and
cannot be considered as having parted with his interest in the
note. The whole proceeding shows he had not, in fact,
assigned the note, or parted with his possession or property in
it. Not having done so, the note remained his property, with
the power to collect it, as provided in the mortgage. There
has been no assignment of the note, and therefore, none of the
power to sell ; but that power has been properly executed by
the mortgagee. The object in introducing the note could only
have been to show a balance due when the sale was made,
and that former credits had been properly applied. The case
did not call for the production of the note, and it was not
necessarily in the case. Remaining in the hands and posses-
sion of the payee and mortgagee, whatever writing he may
24— 31st III.
186 Pardee v. Lindley. [April T,
Opinion of the Court.
have put upon it was in his power to erase or otherwise render
inoperative. It did not, of itself, conclude him as to the fact
of an assignment.
The fourth point made on the third error assigned, is dis-
posed of by the considerations we have already stated, that
there is no evidence of any alteration in the deed. It is
simply a clerical error, in writing in one part of the deed the
name James Lindley, instead of Wilson Lindley, the true
name of the grantor, as all other parts of the deed most plainly
show. As to the other point, the deed to Perry does recite an
advertisement of the sale, and a sale in conformity to the
advertisement, and the advertisement was proved by the testi-
mony of the printer.
Upon the fourth error assigned, it is contended, that the
value of the land was not in controversy, and therefore no
proof of its value should have been allowed. That the prem-
ises, though made up of several distinct tracts of land,
were but one entire tract, for the purposes of a homestead, and
which could not be sold or mortgaged, or otherwise conveyed
by deed, without the assent of the wife, expressed in the mode
prescribed by the statute.
The consideration of this point involves the errors assigned
by the plaintiff. The real controversy is, were the premises a
homestead, and if so, did the purchaser under the mortgage
sale acquire a right to eject the mortgagor and his family,
the mortgage having been executed subsequent to the act of
1857, and the wife not having joined in the deed and released
the benefits of the homestead act, in the mode pointed out in
that act ?
Although by the words of the original act the homestead is
protected only against a levy and forced sale under the process
or order of any court of law or equity, unless it has been duly
released, yet when we consider the object and purposes of the
amended act, we can have no doubt the intention of the
legislature was, so to protect the homestead as to shield it
from the claims of creditors, and from the improvidence of
the husband, for the benefit of the wife and children. This
is evident from the amendment of 1857, which requires the
1863.] Pardee v. Lindley, 187
Opinion of the Court.
wife's release of the benefits of the act. wherein it is emphati-
cally declared that it is the object of the act to require in all
cases her signatute and acknowledgment as conditions to the
alienation of the homestead. It is a right, cast upon her for
her benefit and that of her children, of which she and they
cannot be deprived in any other way than that prescribed in
the act itself. A proceeding by ejectment, to be followed by
a writ of possession, accomplishes what the act designs shall
not be accomplished by a levy and forced sale ; and the injury
to her is equally as great, and the object of the act completely
defeated. The separate property of the wife, which she may
own in fee, cannot be taken from her without her free consent,
to be manifested as the statute directs ; nor can she be de-
prived of dower in her husband's estate, except by her own
act. No judgment or decree of a court, no deed to which she
is not a willing party, can deprive her of this right ; and this
right of homestead is equally inviolate, in spite of creditors or
husband. Nor does the law require her or her husband to do
any act to secure this right. They are both passive, whilst
the law silently but effectually throws around them its pro-
tecting shield. It follows from this, that in any action seeking
to deprive them of this right, the right can be interposed in
defense. So long as the premises are occupied as a homestead,
the deed, without the release of the husband, and wife, if he
has one, can have no effect to deprive them of the homestead :
and this right can be set up in any action brought to eject
them from premises so circumstanced. Patterson v. Kreig,
29 111. 518.
It was then competent to show, in this action of ejectment,
that the premises were the homestead and protected by the
law ; and that they exceeded in value one thousand dollars,
was immaterial in this kind of action. In this case, it appears,
the jury found a tract of twenty acres not parcel of the home-
stead, and for this the plaintiff has a verdict and judgment,
and we see no cause to disturb either. The judgment must be
affirmed.
Judgment affirmed.
188 Olds v. Cummings et al. [April T.
Syllabus.
Justin H. Olds
v.
Preston Cummings et al.
1. Assignment— thoses in action — mortgages. By the common law,
ehoses in action were not assignable.
2. Our statute makes certain choses in action assignable, as promissory
notes, but a mortgage given to secure sucli notes, is not assignable, either
by the common law, or under the statute.
3. Assignment of the debt, carries the mortgage — but only in equity.
The assignment of promissory notes which are secured by mortgage, carries
with it the mortgage, which is but an incident to the principal debt ; but
this is true only in equity.
4. Assignee of a mortgage — his remedy. The assignee of a mortgage
has no remedy upon it at law, except it be treated as an absolute convey-
ance, and the mortgagee convey the premises to the assignee by deed ; and
whether this can be done, the authorities are not agreed.
5. Foreclosure by scire facias — right confined to mortgage. Our
statute authorizing foreclosure of mortgages by scire facias, has confined
the right to the mortgagee, and does not give this remedy to an assignee.
6. Parties in chancery. Courts of equity are not confined to legal
forms and legal titles, but look beyond these, to the substantial, equitable
rights of parties ; and will allow those who have equitable rights, to enforce
them in their own names, without regard to legal titles.
7. So the assignee of a judgment may enforce it in equity, in his own
name.
8. Assignee of legal and equitable rights — how far protected in
each. But while equitable rights may be thus enforced, it will be done
with a scrupulous regard to the equitable rights of others.
9. Thus, if the assignee of a judgment, attempt to enforce it inequity,
without regard to the amount he may have paid for it, or his ignorance of
its having been paid, or of any other reason why it should not be collected,
the court of equity will look into all the circumstances, and will not enforce
it in his favor, if it should not have been enforced, in the hands of his assignor.
10. He who buys that which is not assignable at law, relying upon a court
of chancery to protect and enforce his rights, takes it subject to all the infirm-
ities to which it would have been liable in the hands of the assignor.
11. A promissory note, though secured by mortgage, is still commercial
paper, assignable at law ; and when the remedy is sought upon that, all the
rights incident to commercial paper, will be enforced in the courts of law ;
but when resort is had to a court of equity to foreclose the mortgage,
1863.] Olds v. Cummings et al. 180
Statement of the case.
that court will let in any defense which would have been good against the
mortgage in the hands of the mortgagee himself — and this, regardless
of the fact that the assignee may have purchased the notes in good faith,
and before their maturity.
12. But, notwithstanding the rule that the assignee in such case, will
be subject to any equitable defense which could have been made available
against his assignor, it must be understood, it seems, as being limited to
such defenses as exist in favor of the original obligor; for the assignee
would be protected agaiust the latent equities of third persons, of whose
rights he could have had no notice.
Writ of Error to the Circuit Court of Bureau county ;
the Hon. M. E. Hollister, Judge, presiding.
This was a bill in chancery exhibited in the Circuit Court,
by Justin 11. Olds against Preston Cummings, Cynthia Cum-
mings, his wife, and others, asking the foreclosure of a mort-
gage-
It appears that on the 21st of November, 1857, Preston
Cummings executed, to the order of Charles L. Kelsey, his
two certain promissory notes, both payable some months
thereafter.
On the same day on which the notes were executed, Preston
Cummings, with his wife, Cynthia Cummings, to secure the
payment of these notes, executed and delivered to Kelsey, a
mortgage upon real estate.
The notes were assigned to Olds, the complainant, by Kel-
sey, the payee, as the bill alleges, before their maturity.
Olds, the assignee, sought by this bill, to foreclose the
mortgage mentioned.
Cummings, in his answer, admits the execution of the notes
and mortgage described in the bill ; but interposes the defense
of usury. It is also alleged in the answer, that the assignment
of the notes by Kelsey to Olds, was made, (if at all) long after
their maturity ; but that, in fact, the matter of the assignment
was only colorable, not made bona fide, for a valuable con-
sideration, and only to prevent the defendants setting up the
defense before mentioned.
The record contains voluminous proofs upon these con-
tested questions of fact ; but it is not important to consider the
190 Olds v. Cummings et at. [April T.
Opinion of the Court.
evidence, as the point determined arises out of the facts as
insisted upon by the complainant himself.
The Circuit Court held that the equity of the case was
with the defendant, Preston Cummings, and that there was
usury in the notes sued upon, of which usury the complainant
had notice, and that he was not entitled to recover the same,
but only the principal and interest in the notes, after deduct-
ing the usury which they contained : and a decree was ren-
dered accordingly.
Olds, the complainant below, then sued out this writ of
error, and questions the correctness of that decree, because,
among other grounds, the Circuit Court sustained the defense
of usury as against him.
Mr. Milton T. Peters, for the plaintiff in error.
Messrs. Kendall & Ide, for the defendants in error.
Mr. Chief Justice Caton delivered the opinion of the
Court:
We do not find it necessary to determine the question
whether Olds was a bona fide purchaser of this mortgage or
not. In a case submitted subsequent to this one, we have
been called upon to examine the question as to how far the
rights of the assignee of a mortgage, purchased for a valuable
consideration, before due, and in ignorance of any equities
or defense, shall be affected by such defense; and, as this
record also presents the question, and as the conclusion at
which we have arrived, decides the case, we shall here con-
sider this question and none other.
By the common law, choses in action were not assignable.
For the convenience of commerce, by the statute of Anne,
in England, certain choses in action were made assignable,
bo as to vest in the assignee the legal title, as promissory
notes and bills of exchange. We have a statute, also,
making certain choses in action assignable, prescribing a
particular mode in which they shall be assigned. Our
1863.] Olds v. Cummings et ah. 191
Opinion of tke Court.
statute provides, that any promissory note, bond, bill, or
other instrument in writing, whereby one person promises
to pay to another any sum of money, or article of personal
property, or sum of money in personal property, shall be
assignable by indorsement thereon. Now, the mortgage
to foreclose which this bill was hied, was given to secure
the payment of two promissory notes which were assigned
by the payee and mortgagee to the complainants. This
was, in equity, an assignment of the mortgage. The
notes were assignable by the statute, but the mortgage is
not, nor is it assignable by the common law. The assignee of
a mortgage has no remedy upon it by law, except it be
treated as an absolute conveyance, and the mortgagee convey
the premises to the assignee by deed ; and upon the ques-
tion whether this can be done, the authorities are conflicting.
Even our statute, authorizing foreclosures of mortgages by
scire facias, has carefully confined the right to the mort-
gagee, and does not authorize this to be done by assignees.
But it is said that the assignment of the notes carries with
it the mortgage, which is but an incident to the principal
debt. That is true, in equity, and only in equity. Courts
of equity will not be confined to legal forms and legal titles,
but look beyond these, to the substantial, equitable rights of
parties, and allow parties who have equitable rights, to
enforce those rights in their own names, without regard to
legal titles. The assignee of a judgment, even, may, in his
own name, enforce it in equity. But while courts of equity
thus enforce equitable rights, they do it with a scrupulous
regard to the equitable rights of others. Thus, if the
assignee of a judgment attempt to enforce it in equity, no
matter how much he paid for it, or how ignorant he might
have been that it had been paid, or that there was other
reason why it should not be collected, the court of equity will
look into all the circumstances, and will not enforce it in his
favor, if it ought not to be enforced in the hands of the
assignor. He who buys that which is not assignable at law,
relying upon a court of chancery to protect and enforce his
rights, takes it subject to all infirmities to which it is liable in
192 Olds v. Cummings et al. [April T.
Opinion of the Court.
the hands of the assignor ; and the reason is, that equity will
not lend itself to deprive a party of a right which the law has
secured him, if such right is intrinsically just of itself.
We have not met with a single case, where remedy has
been sought in a court of chancery, upon a mortgage, by an
assignee, in which every defense has not been allowed which
the mortgagor or his representatives could have made against
the mortgagee himself, unless there has been an express
statute, authorizing the assignment of the mortgage itself.
There are many cases in which the assignees have been pro-
tected against latent equities of third persons, whose rights,
or even names, do not appear on the face of the mortgage.
And the reason is, that it is the duty of the purchaser of a
mortgage to inquire of the mortgagor if there be any reason
why it should not be paid ; but he should not be required to
inquire of the whole world, to see if some one has not a
latent equity which might be interfered with by his purchase
of the mortgage, as, for instance, a cestui que trust.
We shall refer to a few of the many cases to be met with
on this subject. In Murry v. Sylhurn, 2 J. C. R. 441, the
question arose upon a bill to foreclose a mortgage by the
assignee, and Chancellor Kent said : "It is a general and
well-settled principle, that the assignee of a chose in action
takes it subject to the same equities it was subject to in the
hands of the assignor. But this rule is generally understood
to mean, the equity residing in the original obligor, and not
an equity residing in some third person, against the assignor."
And for this distinction he assigns the reason above stated.
Again, he says, in the same case : " But bonds and mortgages
are not the subjects of ordinary commerce." Here is ex-
pressed the very essence of the reason of the law. Mortgages
are not commercial paper. It is not convenient to pass them,
from hand to hand, performing the real office of money in
commercial transactions, as notes, bills and the like. When
one takes an obligation secured by a mortgage, relying upon
the mortgage as the security, he must do it deliberately, and
take time to inquire if any reason exists why it should not
be enforced ; while he may take the mere promise to pay the
1863.J Olds v. Cummings et al. 193
Opinion of the Co art.
money as commercial paper, and depend upon the personal
security of the parties to it. It may be said to be a distin-
guishing characteristic of commercial paper, that it relies
upon personal security, and is based upon personal credit.
It is a part of the credit system, which is said to be the life of
commerce, which requires commercial instruments to pass
rapidly from hand to hand. Mortgage securities are too cum-
bersome to answer these ends. The note itself, though secured
by a mortgage, is still commercial paper; and when the
remedy is sought upon that, all the rights incident to commer-
cial paper will be enforced in the courts of law. But when
the remedy is sought through the medium of the mortgage ;
when that is the foundation of the suit, and the note is merely
used as an incident, to ascertain the amount due on the mort-
gage, then the courts of equity, to which resort is had, must
pause, and look deeper into the transaction, and see if there
be any equitable reason why it should not be enforced. He
who holds a note, and also a mortgage, holds in fact two in-
struments for the security of the debt ; first, the note with its
personal security, which is commercial paper, and, as such,
may be enforced in the courts of law, with all the rights in-
cident to such paper; and the other, the mortgage, with
security on land, which may be enforced in the courts of
equity, and is subject to the equities existing between the
parties. The right of an assignee to set at defiance a defense
which could be made against the assignor, is an arbitrary
statutory right, created for the convenience of commerce alone,
and must rely upon the statute for its support ; and is not
fostered and encouraged by courts of equity.
In West/all v. Jones, 23 Barb. 10, the court said : " Does
the plaintiff, being a bona fide purchaser and assignee of
the bond and mortgage, stand in any better condition than
the person from whom he derived his title ? It is a well
settled principle, that the assignee of a chose in action, takes
it subject to all the equities which existed against it in the
hands of the assignor." In this case, the defense to the
foreclosure was, that the mortgage was given without con-
sideration, and to defraud creditors, and the court refused to
25— 3 1st III.
194 Supervisors of Kane Co. v. Young et al. [April T.
Syllabus.
enforce it, but left the assignee, as it would have left the
mortgagee, where their contract left them. The case thus
decides that the term equities, as here used, means defenses.
The opinion of the court proceeds : " But I am prepared to
hold that the plaintiff has no other or greater rights in relation
to this bond and mortgage, and stands in no better position,
than. Parsons, the mortgagee."
So, in Pennsylvania the same rule was held. In Mott v.
Clark, 9 State R. 399, the court said : " He (the assignee)
takes it (the mortgage) subject to all the equities of the mort-
gagor, but not to the latent equities of a third person;"
holding the same rule precisely as the case first referred to,
as decided by Chancellor Kent ; and such also was the case
of Prior v. Wood, 31 Pa. State B,., where the court protected
the assignee of the mortgagee against the latent equities of
third persons against the assignor. And this is as far as any
court has gone in the protection of a bona fide assignee of a
mortgage, when the proceeding was on the mortgage itself,
and in the absence of any express statutory provision author-
izing the assignment of the mortgage.
We find the law to be, both upon principle and authority,
that the assignee of the mortgage in this case, took it subject
to the defense which the mortgagor had against it in the hands
of the assignor. Of the sufficiency of that defense, to the
extent admitted by the Circuit Court, no question was made.
The decree must be affirmed,
Decree affirmed.
The Board of Supervisors of Kane County
v.
Delos W. Young and Abner Hard.
1. Jubisdiction — suits against a county. The Court of Common Pleai
of the city of Aurora, has no jurisdiction of a suit against the county of
Kane, in which that city is situated ; the statute requires all actions
against any county to be commenced in the Circuit Court of the county
against which the action is brought.
1863.] Supervisors of Kane Co. v. Young et at. 195
Statement of the case.
2. Same — Court of Common Pleas of Aurora. The concurrent jurisdic-
tion of the Court of Common Pleas of the city of Aurora, with the Circuit
Court, ia only co-extensive with the city limits of the city of Aurora.
3. Process — to what counties it may issue. In suits brought in the Cir-
cuit Court against the county, the process of the court can in no case run
beyond the limits of the county.
4. Same — service upon counties. Where a county is sued, the statute
provides that the process shall be served upon the clerk of the County Com-
missioners' Court, and the service upon the clerk should be at his office.
5. The statute provides that the service upon the clerk in such case,
must be either during the sitting of the Commissioners' Court, or, so that
a term of that court shall intervene between the service and return day of
the writ ; and the same rule applies in counties where a board of supervis-
ors has superceded the county courts. The court will take notice of the
regular sittings of the board, but, in the absence of proof, will not presume
that a special meeting was held, so as to make a service of process good.
Writ of Error to the Court of Common Pleas of the
City of Aurora ; the Plon. Benjamin F. Parks, Judge, pre-
siding.
This was an action of assumpsit instituted in the court
below by Delos W. Young and Abner Hard, against the
Board of Supervisors of Kane county, in which the city of
Aurora is situated.
The summons was executed on the 29th day of November,
1859, by reading and delivering a copy to John Green, clerk
of the board of supervisors. On the 12th of December, 1859,
it being in term time, a rule was taken on the defendants to
plead by the 1st of January, following.
At the March term, 1860, a default was entered for want
of a plea, and an assessment of damages was had.
A motion in arrest of judgment was overruled, and judg-
ment entered that the plaintiffs recover their damages and
costs, and that the board of supervisors allow the same, and
issue their order therefor.
The defendants below thereupon sued out this writ of error.
It is assigned, that the court below erred in giving judgment,
because the Court of Common Pleas had no jurisdiction ;
and also erred as to the form of the judgment.
196 Supervisors of Kane Co, v. Young et al. [April T.
Briefs of Counsel.
Messrs. Herrington, and Dickey & Wallace, for the
plaintiffs in error, relied upon the following points and
authorities :
1. The Court of Common Pleas of the city of Aurora had
no jurisdiction of the cause. Rev. Stat. 132, Sec. 18. " All
actions, local or transitory, against any county, may be com-
menced and prosecuted to iinal judgment and execution in
the Circuit Court of the county against which the action is
brought." Randolph County v. Ralls, 18 111. 29. Word may
construed to mean must. See cases there cited.
2. The court had no jurisdiction because the process was
sent beyond the city limits, and there served.
3. The Common Pleas had no authority to render judg-
ment quod recuperet against the board, but only to order that
the board allow the amount of damages and costs, and issue
& warrant therefor. Rev. Stat. 1 33, Sec. 20.
Messrs. Montony & Searles, for the defendants in error.
By the first section (Special Laws, 1857, page 392), it is
enacted that the court shall have concurrent jurisdiction,
within the city of Aurora, with the Circuit Court, in all civil
and criminal cases except treason and murder. Then to know
whether the Common Pleas has jurisdiction in this case, it is
only necessary to inquire, had the Circuit Court the power to
try the cause ; if so, then the Common Pleas had a concurrent
right ; with the proviso, however, that service of process was
obtained in the city, or the cause of action arose, and the
plaintiff resided therein.
At common law, courts are divided into superior and infe-
rior courts, or courts of record, and those not of record. 3
Black. Com. 24; Beaubien v. Brinckerlioff, 2 Scam. 269;
Vance et al. v. Funk et al., 2 Scam. 26. The Court of Com-
mon Pleas, while limited, territorially, yet has, within its
territorial limits general jurisdiction in all civil and criminal
cases, except the instances of treason and murder. This court
has a clerk and a seal, and its proceedings are according to
1863.] Supervisors of Kane Co. v. Young et at. 197
Opinion of the Court.
the practice in the common law courts and in the courts of
equity.
Then why shall it not be classified with what are known at
common law as superior courts ? It has every distinguishing
mark by which a superior court at common law is known from
an inferior one. Then it is entitled to those intendments or
presumptions that belong to superior courts, in stating its
jurisdiction, which is, that nothing shall be intended to be
out of the jurisdiction of a superior court, but that which
specially appears to be so. This court will presume (it not
appearing specially to the contrary, from the record) that the
process was served on the county clerk in the city of Aurora,
or that the cause of action arose in the city, and that the
plaintiffs resided there, or indulge any other presumption
which would have authorized the court below to obtain juris-
diction of the defendant below, unless the same are rebutted
by what appears on the record. See Beaubien v. Brincker-
hoff, already cited, on page 274.
Mr. Justice Walker delivered the opinion of the Court :
The question which this record presents, is, whether, under
the legislation of this State, the Common Pleas Court of the
city of Aurora, has jurisdiction to try a cause, in which Kane
County is the defendant. By the 18th section of the chapter
entitled " Counties and County Courts," (Rev. Stat. 192), it is
enacted, that " All actions, local and transitory, against any
county may be commenced and prosecuted to final judgment
and execution, in the Circuit Court of the county against
which the action is brought." In the case of Randolph County
v. Balls, 18 111. 29, it is held, that this provision is impera-
tive, and the suit must be brought in the Circuit Court of the
county sued. The word may, in that section, is construed to
mean must, in accordance with former decisions of this court,
where statutes have used the word may in an imperative
sense.
But even if the act creating the Court of Common Pleas,
is sufficiently comprehensive, to embrace jurisdiction to try
198 Supervisors of Kane Co. v. Young el al. [April T.
Opinion of the Court.
a suit against the county, no express power is conferred, to
serve its process beyond the limits of the city. The first
section of the act creating this court, (Sess. Laws, 1857, p.
392), declares that there shall be established in the city of
Aurora an inferior court, of civil and criminal jurisdiction.
It is declared to be a court of record, with concurrent juris-
diction, within the city, with the Circuit Court, in all cases,
except treason and murder. The fourth section provides, that
process of the court shall be tested in the name of the clerk,
and be issued and executed in the same manner as process
from the Circuit Court of Kane county.
The concurrent jurisdiction of this court with the Circuit
Court, is only co-extensive with the city limits. The process
of the Circuit Court is confined to the county except in a few
specified cases. And in suits against a county, it can in no
case run beyond the limits of the county, to obtain service on
the defendant. It would therefore appear to be clear, that
the Common Pleas had no power to send its process against
the county, beyond the city for service.
But it is contended, that the presumption will be indulged,
for the purpose of sustaining the jurisdiction of the court,
that the county clerk was served within the city. If this was
conceded, would the service be in accordance with the require-
ments of the statute? The 18th section of the act already
referred to, provides, that the summons shall be served, by
leaving a copy with the clerk, either during the sitting of the
Commissioners' Court, or so that a term of that court shall
intervene between the service and the return day of the writ.
And it requires ten days, between the service and return day
of the writ.
The service is constructive upon the county. It is through
the clerk that the county authorities receive notice of the
pendency of the suit, and as he is required to keep his
office at a designated place for the transaction of public
business, it would seem, that this service should be made at
his office. It is designed that all public business connected
with the county shall be transacted at the office of the clerk,
or where the board of supervisors hold their sessions. The
1863.] Supervisors of Kane Co. v. Young et al. 199
Opinion of the Court.
service of a summons against the county is not an exception.
It is there, that he performs his official duties, and his official
acts bear date. It might occur, that the clerk in leaving the
State, and passing through the city could be served, and he
might absent himself for months, and the county receive no
notice of the service on the clerk, in time to make defense.
We think the service on the clerk should be made at his
office.
But if this is not so, the law requires a term of the County
Court, which is superseded by the Board of Supervisors, to
intervene between the service and the trial, in this case the
sheriff returns, that he served the summons on the 29th day
of November, 1859, and on the 12th day of December, fol-
lowing, a rule was taken to plead. At the March term, 1860,
of the court, a judgment by default was entered. Then it
will be seen that a regular meeting of the board did not occur
after the service and before the judgment. The law has
only provided for one regular meeting of the board of super-
visors in each year, and that is on the second Monday of
September. (Scates' Comp. 337, Sec. 2.) The legislature,
in regulating the service on the county, intended that the
county authorities should have actual notice of the pendency
of the suit, and intended that they should have it while in
session for the transaction of business. Not being personally
served, and the clerk not being required to notify them indi-
vidually, the presumption would be, that they had no such
notice as the law designed them to have. If a meeting fixed
by law, had intervened, the presumption would be, that the
board had notice. This record fails to show that there was
a special meeting of the board after the service and before
judgment, and we will not presume that there was. If there
was no other error in the record, the judgment would be re-
versed for this.
The judgment of the court below is reversed, and the cause
remanded.
Judgment reversed.
Note by Reporter. See Act Feb. 20, 1861, (Sess. Acts, p. 236, Art. 13, Sec. 5,) as to
service of process since the passage of that act, in suits against counties in which
township organization has been adopted.
200 Thornton v. Boyden. [April T.
Statement of the case.
Hiram W. Thornton
v.
Wyatt Boyden.
1. Agent must act within the scope of his authority. An agent cannot
go beyond his authority ; he must act strictly according to the powers con-
ferred upon him. If he is empowered to sell land at public auction at a
particular time, and at a particular place, and on certain terms, such terms,
place and time, must be strictly observed.
2. Agent may hind principal — how far. The acts of a special agent are
not binding upon his principal, unless they are strictly within his authority.
S. Judicial and trustee's sales — their adjournment. A power of sale
conferred in a deed of trust, must be strictly pursued as to the time of
giving notice of the sale. So, if the deed requires thirty days' notice to be
given, such sale cannot be adjourned for a less number of days ; should
the sale be adjourned, full thirty days' notice of the time and place of the
sale must still be given.
4. It is the right and duty of a trustee, or a sheriff or other officer, or
commissioner, to adjourn a sale, whenever, from any cause, a reasonably
advantageous price cannot be had, and when it is necessary, to prevent a
great sacrifice of the property ; but in case of such adjournment, the same
notice must be given as was originally required.
5. Homestead — defense in ejectment. It is competent, in an action of
ejectment, for the defendant to interpose as his defense, that the premises
are his homestead.
6. Same — release thereof. A deed of trust executed on the 5th of June,
1857, by a householder and his wife, contained no words of release of the
right of homestead of the grantors, and the certificate of acknowledgment
only set forth, that the wife relinquished her right of dower in the prem-
ises, and had no desire to retract the same. Held, that the homestead right
of the grantors did not pass by the deed.
7. Same — of what it may consist. Where a householder has his dwell-
ing-house upon a town lot, and is farming the lot, together with a tract of
land adjoining, all in the same inclosure, it is competent for him to prove
that the whole premises constitute his homestead.
Appeal from the Circuit Court of Mercer county; the
Hon. Aaron Tyler, Judge, presiding.
This was an action of ejectment, instituted in the Circuit
Court by Wyatt Boy den against Hiram W. Thornton, to
1863.] Thornton v. Boyden. 201
Statement of the case.
recover the possession of the east half of the south-east quar-
ter of Section three, in Township fourteen north, of range
four west, situate in said county of Mercer, containing eighty
acres, in which the plaintiff claimed a fee simple title. The
plea of not guilty was filed, and by agreement, the issue was
tried by the court, without the intervention of a jury.
The plaintiff derived title through a deed of trust, executed
by the defendant, Thornton and his wife, to Mylo Lee, on the
5th day of June, 1857, whereby the premises in question were
conveyed to Lee in trust, to secure the payment of a debt
therein acknowledged to be due from Thornton to the plaintiff,
Boyden.
The deed conferred the power upon Lee, the trustee, in the
event of a failure on the part of Thornton to pay the debt
thereby secured, at its maturity, to proceed to sell the prem-
ises " at public auction, at the front door of the court-house,
at the county seat in Mercer county, for cash in hand, first
giving thirty days' notice of the time, place and terms of sale,
together with a description of the property to be sold, in one
or more of the newspapers printed in the county of Mercer,"
etc.
The certificate of acknowledgment attached to the deed,
was in the usual form, that Thornton and his wife acknowl-
edged that they executed the same as their voluntary act and
deed for the purposes therein expressed, and that Elizabeth F.,
wife of said Hiram W. Thornton, having, by the officer, been
made acquainted with the contents of said deed, and being by
him examined separate and apart from her husband, "acknowl-
edged that she had executed the same, and relinquished her
dower to the premises conveyed, voluntarily, freely and with-
out compulsion of her husband, and that she had no desire to
retract the same."
The body of the deed contained no words of release of the
homestead right of the grantors, in the premises.
The debt intended to be secured by this deed of trust, not
having been paid at its maturity, Lee, the trustee, proceeded
to give notice of the sale of the premises, by virtue of the
26— 31st III. .
202 Thornton v, Boyden. [April T.
Statement of the case.
power granted in the deed, to be made on the 28th day of
December, 1859.
The sale did not take place on the day thus appointed, but
was adjourned according to the following announcement which
was published under the orignal notice :
" POSTPONEMENT.
" The above sale is adjourned for eight days from this date,
and will take place at the hour of two o'clock, p. m., on the 5th
day of January, 1860.
"M. LEE, Trustee
" December 28, 1859."
It was proved that the original notice before mentioned,
was published in one of the newspapers specified in the deed,
from the 22nd day of November, 1859, to the 28th of Decem-
ber inclusive, and that the postponement of the sale at the
foot of the original notice, was first published on the 3rd of
January, 1860, and was published but once. No other notice
was given of the sale, which took place on the 5th of Janu-
ary, in pursuance of the adjournment.
The proof of the notice of the sale and of the postponement,
was made upon the trial below, by the plaintiff ; the defendant
objected to the introduction of the evidence upon that ques-
tion, but the Circuit Court overruled the objection, and the
defendant excepted.
The sufficiency of this notice is one of the questions made
upon the record.
One of the witnesses testified on behalf of the defendant,
upon the trial, that he knew the land in controversy. It had
been improved eight years; the defendant made the improve-
ments, and was still cultivating it, and was in possession of
it on the 22nd of August, 1860, claiming to own it ; that
no person resided upon this eighty acres, but that the same
fence inclosed the eighty, and the town lots on which the
defendant resided. The eighty acres adjoin the town lots of
the town of Millersburg on the south. The defendant's
dwelling-house and stable were situated upon four of these
1863.] Thornton v. Boyden.
Briefs of Counsel.
town lots ; he was engaged in farming the lots and the eighty,
all under one inclosure.
That the defendant had a wife and family, and resided with
them on these premises, during the year 1857, and still resided
there.
The defendant then offered to prove by several witnesses,
that all through the year 1857 the defendant had a family,
consisting of wife and children, and resided with them on the
premises in controversy, and has ever since, occupying and
claiming the whole premises as his homestead ; that the lots
and the eighty have, during the whole time, been in one
inclosure,. and used as one entire premises.
That the whole premises, with the improvements thereon,
were not worth, at the time of the execution of the trust
deed, one thousand dollars, and were not at the time of the
trial.
The plaintiff's objection to this evidence was sustained by
the Circuit Court, and the defendant excepted. The issue
was found for the plaintiff, Boyden. The defendant inter-
posed his motion for a new trial and in arrest of judgment,
which motion was overruled, and judgment entered in pursu-
ance of the finding.
From that judgment the defendant below took this appeal,
and assigns for error :
1. That the court below admitted improper evidence on
the part of the plaintiff.
2. That the court excluded proper evidence offered by the
defendant.
3. That the finding was for the plaintiff.
4. That the court overruled the defendant's motion for a
new trial, and in arrest of judgment ; and
5. That the judgment was entered for the plaintiff.
Messrs. Glover, Cook & Campbell, for the appellant.
1. There was no sufficient notice of the sale of the land
by the trustee. The deed required thirty days' notice, and
did not provide for a postponement. The sale was postponed,
204 Thornton v. Boydbn. [April T.
Briefs of Counsel.
and only eight days' notice was given, and so the sale was not
within the scope of the authority of the trustee. 11 Grat.
281; 11 Ind. 359; 7 Ind. 356; Bloom v. Van Rensselaer,
15 111. 502; Mathews v. Hamilton, 23 111. 470; Blinn et al
v. Mans, 24 111. 317.
2. The evidence proving a homestead should have been
admitted. Kitehell v. Burgwin, 21 111. 40 ; Vanzant v. Van-
zant, 23 111. 53G.
Messrs. H. M. Wead and D. P. Jones, for the appellee.
1. The notice of the adjournment of the sale was sufficient.
18 How. U. S. R. 143 ; 5 Johns. R. 345 ; 11 Maine, 371 ; 4
Barr. 153 ; 9 Mass. 265.
2. The law of 1851 exempted the homestead "from levy
and forced sale under any process or order from any court of
law or equity in this State," and not from sales under trust
deeds. Galena and Chicago Union B. B. Co. v. Menzies, 26
111. 124 ; Smith v. Marc, 26 111. 156.
3. The act of 1857, requiring the wife to join in the
release, and stating the object of the act to be " to require, in
all cases, the signature and acknowledgment of the wife, as
conditions to the alienation of the homestead," has no broader
scope or signification. The words u in all cases" are limited
by the law to which they relate, and are to be construed as
if the sentence read, in all cases of forced sale under any
process or order of any court of law or equity, etc. Scates*
Com. 576.
4. The deed is good as to the excess in value over one
thousand dollars. 5 Cal. R. 506; 38 K Hamp. R. 72; 2
Gray's R. 385.
5. To sustain the deed, then, as to the excess, it must be
held valid as to the whole. The adoption of any other rule
would not only operate unjustly to the grantee of the deed,
but the householder would be protected beyond the extreme
limits of the rights secured to him by the law.
The statute does not render the conveyance void, but
1863.] Thornton v.Boyden. 205
Briefs of Counsel.
entitles the grantee to all the title and interest which the
husband had, and to the possession. The exemption is for the
benefit of the wife and children, but it does not inure to
them till the death of the husband. 30 Term. 680 ; 18 111.
518.
The fact that the wife and children may eventually have an
interest in the property, which cannot be alienated, except in
a particular way, furnishes no better reason why the husband
should not convey his interest and transfer the possession,
than that furnished by the fact that the wife was entitled to
dower on the death of her husband.
6. Under the statute, the householder and his family are
not entitled to retain the homestead as against a judgment
creditor, where it exceeds $1,000 in value ; but such creditor
may sell the same, and have the excess over $1,000 applied
to the payment of his judgment, and such a sale carries all
the right, title and interest of the householder, including the
homestead right. The homestead in this case sold for
$1,669.80 under the trust deed. The householder had no
greater right, as against the deed, than he had as against the
judgment. There was no mode of setting off the homestead,
and therefore he had no right to anything more than $1,000
in money, under the law, which sum he might have compelled
the trustee to pay to him out of the proceeds of the sale. That
being the extent of the householder's rights, the sale and
conveyance did not affect that to which he was really entitled
under the homestead law, and therefore need not have con-
tained an express waiver and acknowledgment.
7. The right of a person to alienate his property is a
universal right, existing from the remotest period, and cannot
be divested by legislative enactment. No legislature has
power to say that a man cannot sell and convey his property.
Any such law would be contrary to natural right, and void.
Our legislature and court have ever recognized and conceded
these principles.
206 Thornton v. Boyden. [April T.
Opinion of the Court.
Mr. Justice Breese delivered the opinion of the Court :
This was an action of ejectment commenced in the Mercer
Circuit Court and brought here by appeal. The issue was
tried by the court without a jury, and a verdict for the plain-
tiff, the appellee here.
Two questions are raised on the record, first, as to the
sufficiency of the notice of the sale.
The terms of the deed of trust under which the sale was
made, are substantially as follows : that on failure to pay the
sum specified in the note, ten days after maturity, then the
trustee shall proceed to sell at public auction, at the front door
of the court-house, etc., for cash in hand, first giving thirty
days' notice of time, place, and terms of said sale, together
with a description of the property to be sold, in one or more
newspapers printed in the county of Mercer, the tract of land
hereby conveyed, etc.
Notice was given in the local newspaper, reciting the execu-
tion of the deed of trust, describing the land, amount of debt
due, and the failure of payment, and then proceeds: "I,
Mylo Lee, trustee as aforesaid, do hereby give this publica-
tion, that by virtue of the power which is invested in me, I
will, on Wednesday, the 28th day of December, 1859, at the
hour of two o'clock in the afternoon of said day, at the court-
house door in the county seat of Mercer county, expose and
offer for sale, at public auction, the parcel of land above de-
scribed, or so much thereof as shall be- necessary to satisfy and
pay the amount of said note, with interest thereon, till the day
of sale, together with the costs and expenses," etc. Dated
this 18th day of November, 1859.
The following notice of postponement was published in the
some paper, at the foot of the original notice, on the 3rd day
of January, 1860 : " The above sale is adjourned for eight
days from this date, and will take place at the hour of two
o'clock p. m. on the 5th day of January, 1860. December
28th, 1859. M. Lee, Trustee."
1863.] Thornton v. Boyden. 207
Opinion of the Court.
At the adjourned day, namely, January 5, 1860, the sale
was made.
No reason for the postponement is assigned in the notist,
and there is no reason to suspect any unfairness on the part
of the trustee, or any one concerned, or any design to do an
injury to any one. Nor is there any ground for believing,
that the postponement prejudiced the interests of the debtor.
The objection stands entirely upon the fact of the adjournment
of the sale.
So the case of Richards et at. v. Holmes et al.9 18 Howard
(U. S.) 147, which was a case, where the trustee had made
two adjournments of a sale, where thirty days' notice was
required, one of them of fourteen days, and the other of one
week, both of them being duly published in the same news-
paper which contained the original notice, and at the foot of
it as in this case, as we infer.
The Supreme Court held that a power to a trustee, to sell
at public auction, after a certain public notice of the time and
place of sale, includes the power regularly to adjourn the sale
to a different time and place, when, in his discretion fairly
exercised, it shall seem to him necessary so to do, in order to
obtain the fair auction price for the property. If he has not
this power, the elements, or many unexpected occurrences may
prevent an attendance of bidders, and cause an inevitable
sacrifice of the property. It is a power which every prudent
owner would exercise in his own behalf, under the circum-
stances supposed, and which he may well be presumed to
intend to confer on another. This power of sale, the court
say, does not undertake to prescribe the particular manner of
making the sale. It is to be at public auction, and " after
having given public notice of such sale by advertisement,
at least thirty days ;" but it assumes that the sale will be
conducted as such sales are usually conducted. A sale regu-
larly adjourned, so as to give notice to all persons present, of
the time and place to which it is adjourned, is, when made,
in effect the sale of which previous public notice was given.
Several cases are cited by the court, to support the views
thus expressed, which we have examined.
208 Thornton v. Boyden. [April T.
Opinion of the Court.
The first is the case of Tinkom v. Purdy, 5 Johnson's R,
345. That case was simply this: Tinkom, a constable, had
levied an execution against Purdy, on a set of blacksmith's
tools, which he advertised for sale at auction at a particular
time and place. On the day of sale, and after two bids were
made, one of the bidders, who had bid twelve dollars,
refused to bid more until he saw the tools. The defendant
objected to adjourning the sale to a different place, but the
constable adjourned to the blacksmith's shop, where the tools
were, at the distance of more than a mile from the place
where the auction commenced, and then sold the tools to the
highest bidder, for twenty-four dollars. The defendant
brought trespass against the constable, and the jury in the
justice's court found a verdict against him, on which the
justice gave judgment. The case was taken by certiorari to
the Supreme Court, where-it was held, that the adjournment
of the sale to a different place was a matter of discretion with
the constable, and the question must always be, whether this
discretion has been abused. There is no charge of fraud or
abuse in the present case, and the constable could not therefore
be liable as a trespasser.
Another case cited, is the case of Russell v. Richards et al.y
11 Maine, 371. In this case the question was, whether an
officer holding an execution on which he had levied, could
adjourn the vendue to two succeeding days, and to a different
place in another town, distant about three miles from the
place originally appointed as the place of sale. It was ad-
mitted, as the jury found, that the vendue was not adjourned
fraudulently or collusively, or to the prejudice of either party.
The court say, they cannot find any authority expressly given
by statute to a sheriff, to adjourn the vendue of personal
property taken on execution, either to a subsequent day or to
a different place. Yet it is easy to state cases where such
sheriff might not have possible time to complete the sale on
the day appointed, owing to the amount of the property and
the multitude of articles he has seized ; or the day appointed
might be so stormy that no person could or would attend the
1863.] Thornton v. Boyden,
Opinion of the Court.
auction with a view of purchasing, or for some other cause,
as was the fact in the present case ; or, if present, persons
might not be inclined to bid. In such circumstances, what
could a sheriff do, unless he could adjourn the sale ? Must
the creditor lose his debt by losing the attachment, without
any fault in any one on whom he could effectually call for
damages? When an officer, acting fairly, and anxiously con-
sulting the best interests of the creditor and debtor too,
adjourns the sale so as to obtain as high a price as he can,
must a court of law pronounce this very act an official wrong,
and declare the sale void in consequence ? To the same effect
is Warren v. Leland, 9 Mass. 264, to which the court referred.
In the case of Lantz v. Worthington, 4 Penn. State R. 155,
Chief Justice Gibson said that the adjournment of a sale for a
period of ten days, by an officer who has levied an execution,
may be a measure indispensable to the creditor's interest, as
it may enable the sheriff to sell for a better price.
These are all the cases to which reference was made by the
Supreme Court of the United States, as supporting their views,
on which they remark : " If such a power is implied when
the law, acting in invitem* selects the officer, a fortiori, it may
be presumed to be granted to a trustee selected by the parties."
With the greatest deference, we cannot think the cases cited
sustain the court. They seem to us referable to principles
wholly different, they being levies on personal property, the
lien on which might be lost unless the officer had a discretion
to adjourn the sale. And that is the case from 9 Mass. The
lien was lost because the officer did not adjourn the sale. In
the case from 5 Johnson, the time of sale was not changed,
and the place only, and that in order to give bidders a view
of the property.
In the case from 11 Maine, the officer was at the place of
sale, as we infer from the opinion, and adjourned it, because
the weather was so stormy no bidders appeared. The court
asks, in such circumstances, what could a sheriff do, unless he
could adjourn the sale ? It might be replied, he could return
the writ with the indorsement, " property not sold for want of
27— 31st III.
210 Thornton v. Boyden. [April T
Opinion of the Court.
bidders." A venditioni exponas could afterwards issue, and
the property be again offered for sale. None of the conse-
quences supposed in the case could flow to the injury of the
officer or the parties, by acting according to the command of
the writ. It is not entirely safe to give such officers so much
and such large discretion.
But in regard to an agent created by the act of a party by
deed, the case is different, and the principles governing it are
also different. The rule is well settled, that an agent cannot
go beyond his authority, and that he must act strictly according
to the power conferred upon him. If he is empowered to
sell land at public auction, at a particular time, at a particular
place and on certain terms, those terms, place and time must
be strictly observed. It is not true, as stated by the court,
that as it is a power which every prudent owner would exercise
in his own behalf, under the circumstances supposed, therefore
his agent, clothed with a special, well-defined and limited
authority, may exercise it also. An owner of property can do
with it as he pleases, and if he has advertised to sell at public
auction, on a certain day, and by reason of bad weather or
non-attendance of bidders, who doubts that he can adjourn it
to such time as he pleases ? It is not so with an agent or
trustee created by deed, which deed is the charter of his
power, and according to which he must act. No enlargement
of his power can be implied, when his duties are plainly
expressed; and it is not a fair presumption that a power has
been granted to him which, in the cases cited, it was held the
law impliedly conferred upon the officers. The acts of a
special agent are not binding on his principal, unless they are
strictly within his authority. Munn v. Commission Co., 15
John's. 44 ; Beats v. Allen, 18 id. 363 ; RossiUr v. RossiUr, 8
Wend. 494 ; Mattheios v. Hamilton, 23 111. 470 ; Speer v.
Hadduch, decided at this term.
By a sale under the trust deed, if made in pursuance of the
power, the title of the appellant would be effectually divested,
no equity of redemption remaining to him, or to any other
person; therefore, in view of such consequences, he has a
right to insist upon a strict compliance with I ■ i>uw r
1863.] Thornton v. Botden. 211
Opinion of the Court.
This sale was not made after a notice of thirty days, for the
first notice had exhausted itself, and it was not renewed for
the time stipulated in the deed. We do not deem it material
the deed itself should provide for an adjournment of a sale.
We only mean to say, when such a sale is adjourned, full
thirty days' notice of the time and place of the sale must be
given.
We recognize the right and the duty of a trustee, as well
as a sheriff or other officer or commissioner, to adjourn a sale,
whenever, from any cause, a reasonably advantageous price
cannot be had, and when it is necessary to prevent a great
sacrifice of the property ; but we so hold, that he must give
the same notice as was originally required. Crocker on
Sheriffs, 199 ; Enloe v. Miles, 12 S. & M. 147. In this case
no attempt was made to sell on the day first specified.
Upon the remaining point, the rejection of the evidence
offered, to show these premises were a homestead, we refer to
the cases of Pardee v. Lindley and Connor v. Nichols, decided
at this term, and Patterson v. Kreig, 29 111. 532, in which it
was decided such evidence should be received in an action of
ejectment, but the value of the premises is wholly immaterial
in this form of action. We do not design to go over the
grounds opened in those cases. The deed in this case con-
tained no waiver of the homestead, nor did the acknowledg-
ment. It was competent for the defendant to show the tract
of eighty acres adjoined his dwelling-house, and was claimed
by him as a homestead.
The judgment of the Circuit Court is reversed, and the
cause remanded for further proceedings not inconsistent with
this opinion.
Reversed and remanded.
212 Fortier v. Darst [April T.
Statement of the case
Bartholomew Portieb
v.
Jacob Darst.
1. Assignment— -legal title. Where the owner of a note, and a mortgage
given to secure the same, assigns them upon a separate paper, for the pur-
pose of enabling the assignee to make collection, such assignment will not
pass the legal title.
2. Assignee of equitable title — Twlds subject to equities. The
assignee of an equitable title, to enforce which, he must resort to a court
of chancery, takes such title with all the equities and infirmities existing
against it, arid can claim nothing under it which his assignor could not
have claimed.
Writ of Error to the Circuit Court of Peoria county; the
Hon. S. L. Richmond, Judge, presiding.
Jacob Darst exhibited his bill in chancery in the court
below, against Bartholomew Fortier, James McFadden, and
another.
From the statements in the bill, and the evidence adduced
on the hearing, it appears that on the 17th of April. 1849,
McFadden, being indebted to Fortier in the sum of four
thousand dollars, executed his four promissory notes for one
thousand dollars each ; and on the same day, to secure those
notes, McFadden executed and delivered to Fortier a mort-
gage upon certain real estate, situate in the city of Peoria.
The notes having become due, and remaining unpaid,
Fortier placed the same, together with the mortgage, in the
hands of Manning & Merriman, attorneys in Peoria, for col-
lection ; they giving to Fortier a receipt therefor, which was
as follows :
"Rec'd of Bartholomew Fortier four promissory notes of
one thousand dollars each, all bearing date April IT, 1849,
one payable Nov. 1, 1850; one payable Nov. 1, 1851; one
payable Nov 1, 1852, and the other payable Nov. 1, 1853;
all signed by James McFadden, and payable to said Fortier.
Also received the mortgage by which said notes are secured,
1863.] Fortier v. Darst. 213
Statement of the case.
on French claims in the village of Peoria, numbered one,
eleven, fortj-one and forty-two; all said notes drawing six
per cent, interest from date ; and on which five hundred and
ten dollars have been paid ; which are received for collection,
and to be accounted for accordingly."
"MANNING & MERRIMAN.
" Peoria, Illinois, July 5, 1854."
Manning & Merriman, as attorneys for Fortier, instituted
proceedings in the Circuit Court of Peoria county, by scire
facias, to foreclose the mortgage against McFadden, and on
the 12th day of May, 1857, obtained a judgment of foreclos-
ure thereon. That judgment was afterward reversed in the
Supreme Court, at the instance of McFadden.
But during the pendency of the proceedings by scire facias
in the Circuit Court, to wit, on the 15th day of March, 1855,
Fortier, being an old man, between fifty and sixty years of
age ; a Frenchman, but little acquainted with our language ;
and unable to read or write, desired to procure some person
to take entire charge of the matters connected with the notes
and mortgage, and their collection ; and accordingly he em-
p oyed Joseph L. Papin, as his agent for that purpose; For-
tier giving to Papin, upon the back of the receipt which had
been previously given him by Manning & Merriman, an in-
strument as follows :
" I hereby assign to Joseph L. Papin the notes and mort-
gage within mentioned, and authorize him to collect said notes,
by suit or otherwise, and to make such an adjustment thereof
as to him may seem proper, the whole to be done at his own
expense. Witness my hand and seal, this 15th March, 1855.
" BARTHOLOMEW FORTIER.' '
On the same day Papin gave to Fortier an instrument ex-
planatory of the terms and condition of the foregoing assign-
ment, as follows :
First, reciting that Fortier had assigned to him the notes
and mortgage in question, describing them, then proceeds :
" which notes were assigned to me (together with the said
mortgage) for collection ; it is understood, however, that the
214: Forties v. Dabst. i April T
Statement of the case.
sum of five hundred and ten dollars was paid on said notes,
prior to July 5th, 1854. Now, I hereby agree with the said
For tier, to commence, or prosecute, all necessary suits, lor the
collection of said notes and interest, and to pay out m my
own pocket, all attorney's fees, and all other costs and expenses
which have been incurred, or which may be incurred, in
the collection, or in the attempt to collect, said notes."
"And whenever, and as soon as, the said notes, or any part
thereof, are collected, I agree to pay over to said Fortier, or
his representatives, the two-thirds of whatever sum or sums
may be so collected, both of principal and interest. Said For-
tier is to be at no cost or expenses whatever about the busi-
ness.
"Witness my hand and seal, this 15th March, 1855.
"J.L. PAPIN [SEAL.]"
Fortier, becoming apprehensive, as he alleges in his answer,
of serious obstacles, intervening in the collection of the notes,
on the second day of September, 1858, entered into the fol-
lowing agreement with McFadden, to wit :
After reciting that McFadden was then indebted to Fortier
in the amount of the notes mentioned, and referring to the
mortgage given to secure their payment, all being described
and made a part of the agreement, the parties proceed to
stipulate, that for the purpose of settling and adjusting all
matters between them, McFadden was to pay over to Fortier
all die rents accruing on a certain portion of the mortgaged
premises, for four years from that time; out of which rents
Fortier was to pay certain taxes and insurance on the property,
and the residue to be applied upon the notes secured by the
mortgage. A further provision in this agreement was, that
McFadden should thereafter pay interest on the debt at the
rate of eight per cent, per annum.
In case the buildings insured should be destroyed, Fortier
to apply the amount of the insurance upon the notes.
In case McFadden desired to sell certain portions of the
mortgaged property, he could do so upon paying to Fortier the
sum of two thousand dollars annually, until the notes should
be fully paid.
1863.] Fojstieb v. Daest. 215
Statement of the
Fortier was to suspend all proceedings for the collection of
the notes for a period of four years from the date of the
agreement ; and to extend the time of payment of the same
during that time, except so far as the rents and insurance
might be applied for that purpose.
Fortier, also, by this agreement, released and discharged a
certain portion of the premises from the mortgage.
He was also to keep the buildings, of which he was to
receive the rents, insured to a certain stipulated amount. As
soon as the notes should become fully paid, in any way, Fortier
was to release and cancel the mortgage ; and in case the whole
amount should not be paid within the four years, Fortier might
proceed to foreclose the mortgage upon a certain portion of
the premises, without further litigation, McFadden having the
right of redemption as in other cases, under the statute.
John T. Lindsey was authorized, as the agent of Fortier, to
collect the rents, and to apply the proceeds as before stipulated.
And finally, the agreement set forth, that if the notes should
not be fully paid within the four years before mentioned, then
Fortier was to have a decree of foreclosure for the amount
remaining unpaid.
This instrument was filed for record in the office of the
recorder of Peoria county, on the third day of March, 1860,
and was duly recorded therein.
Lindsey, the agent of Fortier, acted under the appointment
made in the foregoing agreement, in collecting the rents each
month, from about the time it was executed until after the
commencement of this suit ; paying over the money to Fortier,
about as it was received.
Papin, without having collected any part of the notes,
executed an assignment to Darst, upon the back of the receipt
before mentioned, given by Manning & Merriman to Fortier,
as follows :
"I hereby assign to Jacob Darst all my interest in the
within named notes, without recourse on me.
" Witness my hand and seal, at St. Louis, this 1st March,
1860.
"J. L. PAPIN. [HEAL.]"
216 Fortier v. Darst. [April T.
Statement of the case.
In regard to this instrument, upon an examination of it,
Lewis Howell, a witness on the part of Fortier, testified that
there appeared to be some alteration of the date of the
assignment by Papin to Darst — there appeared to have been
an erasure for some purpose. Something had been erased,
and the "1st" inserted — there appeared to have been a
figure " 7 " under the letters " st." He did not think the
change was made by the one who wrote the instrument ; it
did not look like it.
The judgment which had been rendered, as before men-
tioned, in the proceedings by scire facias, in favor of Fortier,
against McFadden, was reversed at the April term, 1859, of
the Supreme Court; and in April, 1860, a fee bill issued
against Fortier, from that court, directed to the sheriff of
Peoria county, for the costs in said cause. The fee bill was,
by the sheriff, levied upon certain real estate, the property of
Fortier ; the property sold, and Darst became the purchaser.
Fortier alleges that he had no knowledge of this levy and sale,
until some time after the sale was made ; and the record shows
that he afterwards redeemed the premises so purchased by
Darst.
In November, 1860, the mortgaged premises before referred
to, were sold for taxes due to the eity of Peoria for the year
1860, and Darst became the purchaser of the same for the
sum of sixty-five dollars and sixty cents. Subsequently
Fortier redeemed these premises from said tax sale, by paying
to Darst the sum of one hundred and thirty-one dollars and
twenty cents, which Darst accepted, and gave a receipt there-
for on the back of his certificate of purchase.
These are the principal facts, as disclosed by the record,
bearing upon the rights of the parties. Both Fortier and
Darst claimed title to the notes and mortgage ; Fortier, by
virtue of his original ownership, with which, he insisted, he
had never parted ; and Darst, by virtue of the successive
assignments from Fortier to Papin, and from Papin to
himself.
Darst filed this bill to settle the rights of the parties in the
premises, and a decree was rendered in the Circuit Court,
1863.] Fortier v. Darst. 217
Opinion of the Court.
establishing the ownership in the notes and mortgage to be in
Darst, and perpetually enjoining Fortier from intermeddling
any further with the same.
There was a question made upon the hearing in the court
below, whether Darst did not have notice directly, of the
rights of Fortier, before he took the assignment from Papin ;
but as that does not seem to enter into the decision of this
court, it is omitted.
Fortier, not being satisfied with the decree of the Circuit
Court, sued out this writ of error; and by his assignment of
errors, questions its correctness.
Messrs. H. Grove and Cooper & Moss, for the plaintiff in
error.
The assignments from Fortier to Papin, and from Papin to
Darst, did not pass the legal title to the notes and mortgage ;
but, at most, only an equitable interest. Darst, therefore, took
subject to all the equities existing between Fortier and Papin.
The assignee of a chose in action, takes it subject to all the
equities of the assignor. Mangles v. Dixon, 18 Eng. Law &
Eq. E. 82 ; 1 Bro. Chan. Cas. 434 ; 1 P. Wins. 496 ; 2 Venn.
764 ; 4 Yes. 118 ; 9 Yes. 264. See also, tfullivan v. Dollins,
13 111. 85, and McJilton v. Love, ib. 495.
Messrs. Wead & Powell, for the defendant in error.
Mr. Chief Justice Caton delivered the opinion of the
Court :
We have here presented a most offensive exhibition of
human depravity and dishonesty on the part of Papin, at least,
if not of Darst. Fortier, an ignorant and evidently confiding
man, placed in the hands of Papin, this mortgage and notes,
for collection, in order to avoid further vexation and expense
in their prosecution ; and agreed to give him one-third of the
proceeds in consideration that Papin should take all trouble,
and pay all expense. In violation of the trust and confidence
reposed in him, he sets himself to work to get a tax title to
28— 31st III.
218 Foetiee v. Daest. [April T.
Opinion of the Court.
the land ; allows an execution to be issued against Fortier for
costs, which he had occasioned in attempts to collect the amount ;
and finally, assigns his claim to the notes and mortgage to
Darst, for the purpose of cheating Fortier out of the money
due him. And Darst now files this bill to enjoin Fortier
from intermeddling in the matter; claiming the whole to
belong to him, as the bona fide assignee of Papin. We say,
this is the most provoking exhibition of rascality we have
lately met with. And we are strongly inclined to the
opinion that Darst is as deeply implicated as Papin ; but
whether this be so or not, can make no difference with the
final result of this suit. The legal title to the notes and
mortgage has ever remained in Fortier. The only title Papin
ever had to them, was an equitable title, and Darst could
acquire no higher or better title than Papin had under the
assignment by Papin ; even if that assignment were not a
forgery, by reason of the alteration made in it, which is
testified to by Howell, and is manifest on inspection of the
instrument, which is before us. But waiving this, the com-
plainant, by taking an equitable title, which he has to resort
to a court of equity to enforce, took that title with all the
equities and infirmities existing against it, and can claim
nothing under it, which Papin, his assignor, could not have
claimed. Olds v. Oummings, ante, p. 188. A party who comes
into a court of equity, asking for equitable relief, which a court
of law cannot afford him, and exhibits a case blotched all over
with fraud and overreaching, as this is, must expect little
favor or sympathy at our hands. Papin, by the gross viola-
tion of every obligation imposed on him by his agreement
with Fortier, has forfeited all rights under it ; and Darst, his
assignee, who occupies no higher or better ground, also has
no rights which he can assert under the agreement with
Fortier, who must be allowed to go on and collect the money
due him, and enjoy it, without further molestation from either
Papin or Darst.
The decree is reversed, and the bill dismissed.
Decree reversed, and bill dismissed.
1863.] Shoetall v. Hinckley et al. 219
Syllabus.
John G. Shortall
v.
Samuel T. Hinckley, and Chakles R. Starkweather.
1. Limitations — tenant by the curtesy. The title of a tenant by the
curtesy may be barred by limitation.
2. Statute of limitations— continues to run. Should the statute of
limitations commence to run against such title, while being held by the
husband, the subsequent conveyance of the land to which the title at-
tached, by husband and wife, will not arrest the running of the statute, as
against their grantee.
3. Estate by the curtesy — its incidents and character. The interest
of a tenant by the curtesy is a vested legal estate, distinct from that of the
wife, and is liable to all the incidents of any other freehold or life estate ;
it is subject to sale under execution, or by himself, or he may lease it to
the extent of the whole, or any part of the term.
4. Grantee or lessee of tenant by the curtesy — Ms rights as
against subsequent grantee of husband and wife. And if he were to convey
or lease his interest, the title of the grantee or lessee would not be defeated
by a subsequent conveyance of the whole estate by the husband and wife ;
such subsequent conveyance would only pass the wife's remainder.
5. Nor can the grantee who thus has title only to the wife's remainder,
maintain ejectment against the original grantee or lessee of the tenant by
the curtesy , during the lifetime of the latter.
6. Estate by the curtesy barred — defeats ejectment during husband's
lifetime. So, as in this case, if a grantee of husband and wife, of the wife's
lands, bring ejectment during the husband's lifetime, against one in adverse
possession, and it appear that the husband's right as tenant by the curtesy,
is barred by the statute of limitations, the whole action will be defeated.
7. After death of husband, the fee recoverable. But, no doubt,
after the death of the husband, the life estate having expired, such grantee
may recover the fee which was in the wife, that not being barred.
8. Estate by the curtesy — may be conveyed by husband alone. The
husband may convey his interest, as tenant by the curtesy, without his wife
joining in the conveyance.
9. Parties — in suits relating to estate by the curtesy. Nor need she join
with her husband in a suit to recover his possession, or for damages sus-
tained by trespass.
10. Statute of limitations — effect of conveying land in adverse posses
sion. The conveyance of land while in the adverse possession of another,
although it is valid under our statute for the purpose of passing all the
rights of the grantor, does not operate to arrest the running of the statute
of limitations which had, prior to the conveyance, commenced to run agains*
the grantor.
220 Shortall v. Hinckley et al. [April T.
Statement of the case.
11. Conveyance op land in adverse possessi ,s— character of right
which passes thereby. The effect of a conveyance of land by one out of
possession, the same being in the adverse possession of another, under the
provisions of the fourth section of our conveyance act, is simply to invest
the grantee with all the rights of the grantor precisely as he then held them.
"Writ of Error to the Superior Court of Chicago.
This was an action of ejectment instituted by Shortall against
Hinckley, on the twenty-second day of February, A. D. 1861.
The declaration contained three counts.
First count. For an undivided three-sixths, in fee simple,
of a certain part of lot number fifteen, in block number one
hundred and thirty-eight, in the School Section Addition to
the city of Chicago.
Second count. For another undivided two-sixths, in fee
simple, of the same parcel.
Third count. For a life estate for the life of Iiibbard Por-
ter in one other undivided one-sixth of the same parcel.
Plea of the general issue by Hinckley, and issue thereon.
Subsequently, Starkweather, landlord of Hinckley, his tenant
in possession, was admitted as a co-defendant.
It appeared from the evidence on the part of the plaintiff
below, (who is also the plaintiff in error), that Hiram Gilson,
holding the title in fee simple to the premises in question,
died intestate, in the year 1844, leaving as his only heirs, his
mother, Mehitabel Gilson ; his sister, Harriet W. Reed, wife
of Charles M. Reed ; his sister, Caroline McAlister, wife of
David McAlister ; his brother, W. P. Gilson, and his sister,
Phila D. Porter, wife of Hibbard Porter. All of these sisters
had children living, the issue of their several marriages. In
the year 1852, Phila D. Porter died, leaving children sur-
viving her. On the 31st of March, 1856, Mehitabel Gilson,
W. P. Gilson and wife, Charles M. Reed and wife, and David
McAlister and wife, conveyed all their interest in the property
in question, to Hibbard Porter ; and on the 4th of June, 1860,
Hibbard Porter conveyed the same, together with his own
interest as tenant by the curtesy in the one-sixth inherited by
his wife, to Shortall, the plaintiff.
1863.] Shortall v. Hinckley et al. 221
Briefs of Counsel.
On the part of the defendant it was established that at the
commencement of the suit, Hinckley was in possession of the
premises as the tenant of Starkweather, and that Starkweather
had been in the actual possession thereof, through his tenants,
under claim and color of title, made in good faith, for seven
successive years prior to the commencement of the suit, and
continued in such possession, and also, during all that time,
beginning with the year 1850, had paid all taxes legally
assessed on the premises.
The issue was found for the defendants ; and thereupon the
plaintiff entered his motion for a new trial, upon the ground
that the finding was contrary to the law and the evidence.
Which motion was denied by the court, and the plaintiff
excepted.
Judgment was entered for the defendants.
It is assigned for error, 1st, that the finding upon the issue
was against law and evidence ; 2nd, that the court erred in
overruling the plaintiff's motion for a new trial ; and 3rd, in
rendering a judgment in favor of the defendants, when it
should have been for the plaintiff.
Mr. John Borden, for plaintiff in error.
The decision of the case involves a rule of property arising
out of a proper construction of the limitation law.
The interests sued for in the first and third counts are barred
under section eight, unless saved by section four of the con-
veyance act. Rev. Stat. 1845, 103, 104 ; Scates' Comp,
959, 750. The grantors of Hibbard Porter had their respect-
ive estates still vested in them and unbarred, at the date of
their deed to him, the seven years not having yet elapsed.
The interests of Mehitabel G-ilson and W. P. Gilson would
have been barred in another year, had the deed not been made ;
but Hibbard Porter, or his grantee, was not bound to sue
within such remaining year to avoid the bar.
Under the fourth section before cited, the grantee of a party
out of possession, does not merely acquire the right of the
grantor to sue, but that right is so far extended tnat the
222 Shoetall v. Hinckley et al. [April T.
Briefs of Counsel.
grantee has the same right of action as if the grantor had
been in the actual possession at the time of executing the
conveyance ; the grantee has seven years after the execution
of the deed to him, in which to sue.
The position contended for, on the part of the plaintiff, as
to the two-sixths interest sued for in the second count, is, that
at the date of the deed of McAlister and wife and Reed and
wife, the husbands had each a life estate for their own lives
vested in them as tenants by the curtesy initiate ; that their
wives had a reversionary interest in fee therein, as to one-
sixth each. That on March 31, 1856, when they conveyed
to Hibbard Porter, the life estates of the husbands were
merged in the fee of their wives, and Porter acquired a present
interest of a fee in the two-sixths ; that the reversionary in-
terests of the wives becoming, by the merger, present interests,
the cause of action thereon then first accrued, and Porter or
his grantee had seven years from March 31, 1856, to bring
his action for the two-sixths, which period had not elapsed in
this case, suit having been brought February 22, 1861. The
case of Foster v. Marshall, 2 Foster ("N.H.) 491, show this to
be the law. See also Marple v. Myers, 12 Penn. State R.
2 Jones, 122.
In the next place, McAlister and Peed were both tenants
by the curtesy initiate before 1850, when the statute of lim-
itations began to run. And this is a vested estate for the life
of the husband ; for if the sheriff levies on the husband's in-
terest in the wife's land after issue born, he levies upon a life
estate for the life of the husband. Mattocks v. Stearns, 9
Vermont, 326 ; Day et al. v. Cochran, 24 Miss. 261.
And the wife's estate in such case being reversionary, she
has the full period given by the statute after the death of her
husband, it being a new accruer, and her right in such case is
not saved to her by the disability clause. Foster v. Marshall,
2 Foster (N. H.) R. 491 ; Jackson v. Johnson, 5 Cowen, 74;
Jackson v. Schoonmaker, 4 Johns. 390 ; Jackson v. Sellich,
Johns. 202.
Section eight of the conveyance act is an act of limitation,
{JVewland v. Mars\ 19 111. 376,) and is to be governed by the
1863.] Seoriall 1>, Hinckley et at.
Briefs of Counsel.
principles applicable to limitation laws. The several statutes
of limitation being all in pari materia, ought to receive a
uniform construction, notwithstanding any slight variation of
phrase, the object and intention being the same. Murray v.
The East India Company, 5 Barn. & Aid. 204.
The doctrine in this State is, that the operation of the stat-
ute of limitations is to bar the title, and not to transfer it.
Ilinchman v. Whetstone, 23 111. 185.
Messrs. Hoyne, Miller & Lewis, for the defendants in
error.
1. The plaintiff cannot recover upon the first count, for the
estates of Mehitabel, the mother, and W. P. Gilson, compris-
ing three-sixths, are barred under the eighth section above
cited, neither of these parties being within any of the saving
clauses of the statute.
2. He cannot recover upon the third count, for the reason
that the particular estate of Hibbard Porter is also barred by
the statute.
3. Neither can he recover upon the second count for the
two-sixths inherited by the two sisters, Harriet W. Reed and
Caroline E. McAlister. They having issue living, each of
their husbands became entitled to a freehold or an estate for his
own life, as tenant by the curtesy initiate, in that portion in-
herited by his wife, and this particular estate of the husband,
with the remainder to his wife in fee, constituted the entire
estate in fee, which is claimed in this count. This estate of
the husband was a legal estate ; it could have been conveyed
by him. It was in every sense his land, and liable to respond
to his debts. 2 Kent Com. 130 ; Lessee of Thompson's Heirs
v. Green, 4 Ohio State R. 223 ; Schermerhom v. Muller, i
Cow. R. 439; Foster v. Marshall, (N. H.) 492.
In respect to each of the one-sixth portions claimed in this
count, the adverse title was held by the husband and the wife,
and the two estates together, the freehold of the husband with
the remainder to the wife held by one ?*nd the same title, con-
stituted the fee simple estate which is claimed by the plaintiff.
224 Short all v. Hinckley et al. [April T
Briefs of Counsel.
The estate in remainder will not take effect until the determi-
nation of the particular estate, and this will not be determined
until the death of the husband.
4. The action of ejectment is a possessory action, and can-
not prevail unless the plain tifT has the right to the possession
at the time it is instituted. In this case the plaintiff cannot
have this right of possession except through the particular es-
tates of the husbands of these sisters, and their estates are each,
as against the defendants, not determined but barred by the
statute. In respect then to this freehold, neither the husband,
nor the grantee of the husband, can maintain this action. See
Lessee of Thompson's Heirs v. Green, 4 Ohio State E. 216 ;
Neal v. Robertson, 2 Dana, 86 ; Carter v. Cartrell, 16 Ark.
154.
5. The fact that these husbands with their wives conveyed
their respective estates to Hibbard Porter, does not aid the
plaintiff at all, for it is well settled that the same party may
have several and successive estates in the same property, and
several rights of entry by virtue of these estates, and one of
these rights may be barred without the others being affected.
Hunt v. Burn, 2 Salk. 422 ; Wells v. Prime, 9 Mass. R. 508 ;
Stevens v. Winship, 1 Pick. R. 318 ; Ulson v. Thompson, 10
Pick. K 359.
6. It cannot be successfully contended that the freehold of
the husband is saved by the tenth section from the operation
of the eighth section.
The tenth section provides, that the eighth section shall not
extend to lands where there shall be an adverse title, and the
holder of such adverse title is a feme covert, provided such
person shall commence an action to recover such lands within
three years after such disability shall cease to exist. The ob-
ject of this section was to grant a privilege to the wife, and
not to the husband. This is moreover a personal privilege, a
protection to the wife, and cannot be set up by her grantee or
releasee. Williams v. Council, 4 Jones (N. C.) 206 ; Carter
v. Cartrell, 16 Ark. 154.
The language of this section is, provided such person, not
the grantee of such person, shall commence an action, etc.
1863.] Suoktall v. Hinckley et al. 295
Opinion of the Court.
The disability of the femes eovert ceased to exist, in this
case, the moment they made a valid conveyance; so their
grantee must sue within three years after the deed was made.
7. Notwithstanding the merger of the particular estate,
persons who have interests affecting the estate which is
merged, will be left in the same condition, in point of benefit,
as if no merger had taken place. Preston on Merger, 447,
448 ; 17 Law Lib. (4th series) 191, 192.
Mr. Borden, for the plaintiff in error, in reply.
The fifth point made by defendants5 counsel is not law. 2
Salk. 422, holds only that one may have several remedies for
the same right, and be barred of his formedon ; he may yet
have his right of entry.
A reversioner may have two rights of entry ; he may enter
for a disseizin, or he may enter after the determination of the
life estate by death of tenant for life.
Definition of Merger, 2 Black. Com. 177 ; 1 Wend. 478.
And the rule is inflexible at law. 2 Cowen, 300. As to the
effect of merger : It will change the line of descent. Nich-
olson v. Ralsey, 1 Johns. Ch. 417. It will extinguish a rent
and the covenants to pay it. Webb v. Russell, 3 Tenn. E. 393.
When an estate is merged, the rights under it, and the bars
against it are extinguished at law.
In Webster v. Oilman, 1 Story, 499, the deed of a tenant
for life was not operative as a conveyance by reason of the
adverse possession ; but if it had been, it could not have bene-
fited the demandant, because his count was for a life estate,
whereas, if the deed had been operative, he would have been
entitled, by the merger, to a greater estate.
Mr. Justice W alker delivered the opinion of the Court :
There was no disability existing to prevent Mehitabel and
W. P. Gilson, from instituting proceedings to recover their
undivided interests in these premises, during the time they
the owners of the property. Nor did any exist to pre-
29— 31st III.
226 Shortall v. Hinckley et al. [April T.
Opinion of the Court.
vent plaintiff in error, after his purchase, and before the seven
years of actual possession, and payment of taxes, under
claim and color of title, by Starkweather, had expired. He,
it appears, entered into, and held the possession of the prem-
ises, under claim and color of title, for the period of limita-
tion, and paid all taxes legally assessed for the period of
seven years. This, without an actual, peaceable entry, pay-
ment of some portion of the taxes, or the institution of a
suit to recover the possession, within that period of time,
bars the right to recover the undivided half claimed through
Mehitabel and W. P. Gilson, by their conveyance to plaintiff
in error.
It appears from the evidence, that Harriet W. Keed, and
Caroline E. McAlister, who, as sisters of Hiram Gilson,
inherited each one-sixth part of the premises, were, at the
time of his death, femes covert, and had children of the
marriage, and that they and their husbands are still living.
That they joined with their husbands, in March, 1856, in
conveying their interest in this land to Hibbard Porter, who,
in June, 1860, for a nominal consideration expressed in the
deed, conveyed it to plaintiff in error. It also appears, that at
the time of the death of Hiram Gilson, his sister, Phila D.
Porter, then the wife of Hibbard Porter, inherited one-sixth
of the premises in controversy. That she had children born
alive by the marriage, and died in the year 1852, leaving
children then and now surviving her.
At the death of Hiram Gilson, all these sisters were married,
and had children then living, the issue of their several mar-
riages. Their husbands thereby became invested with, or
entitled to, a life estate in their wives7 share of this property,
by the curtesy initiate. This life estate of the husband, with
the wife's remainder, constitutes the entire estate in, or title
to, the wife's share of the property. This interest of the
husband in his wife's property, is a vested legal estate, sub-
ject to sale on execution, or by himself. He could have
leased it, to the extent of the whole or any portion of the
term. 2 Kent, 130 ; Thompson v. G^een, 4 Ohio State R
217; Sc/iertnerhorn v. Mutter, 2 Co wen, 439. JSTor can the
1863,] Short all v. Hinckley el at. 227
Opinion of the Court.
estate of the wife take effect in her during the coverture.
The estate of the husband is carved out of, and is a distinct
estate from hers. He holds it as if he had acquired it by
deed, and it is liable to all the incidents of any other freehold
or life estate, until it is again merged into the fee simple.*
If he were to convey or lease it, the title of the grantee or
lessee could not be defeated by the husband and wife joining
in a subsequent conveyance. They would thereby pass the
wife's remainder, but could not affect the present estate
created by the husband's previous conveyance. Until the
death of the husband, his grantee would be entitled t-o hold
the premises. Nor need the wife join with the husband to
pass his life estate, nor in a suit to recover the possession for
the husband, or for damages sustained by trespass.
He, then, having a separate estate from that of his wife, in
the premises, with a present right of possession, and being at
liberty to sue and recover the possession in his own right, for
his own use, without the assent of the wife, no reason is
perceived why his title may not be barred by the statute of
limitations. It has never been questioned that a term of
years, or life estate, might not be as effectually barred, as a
fee simple or other estate. And no reason is perceived why
the husband's life estate in the lands of his wife should form
an exception to the general rule. This is by no means a
question of first impression, as it has been discussed and
authoritatively determined in various States of the Union.
Thompson v. Green, 4 Ohio State R. 216 ; Neal v. Robertson,
2 Dana, 86 ; Carter v. Cartrell, 16 Ark. R 154. And in the
case of Wright v. Plum-tree, 3 Barn. & Aid. 474, it was held,
that the husband who claims in the right of his wife, must
make his entry or lose his action to avoid a fine, in five years
after his right accrued. In support of the decision, Hulm v.
Heylock, Cro. Car. 200, is referred to by the court as being
directly in point. The principle decided in these cases, is
precisely the same as that involved in the case mder consid-
eration.
* See act February 21, 1861, (Acts 1861, p. 143) entitled " An act to protect married women In
their separate property," as to Its effect upon the Husband's Interest In the wife's property.
228 Short all v. Hinckley et al. [April T.
ODinion of the Court.
The bar of the statute against a recovery by the husband,
cannot be avoided by the institution of a suit by husband and
wife. The wife's interest is not a present, but a future estate,
dependent upon the death of the husband. It is true, that by
the operation of the statute, the husband may have lost his
estate in the lands,' but it does not therefore follow, that the
wife has become vested with his estate, or that it has merged
in the fee, and created a present estate in the wife. She is
unable to sue alone during the coverture ; and if she join with
the husband, his right is barred by the statute ; if she can
recover at all, it must be jointly with him ; and when his
right is defeated, there can be no remedy. This view of the
case seems to have been almost conceded in the argument.
This life estate, like any other present estate, capable of being
reduced to possession by the owner, not under disability, or
within the savings of the statute, is subject to, and governed
by, its provisions. The wife's estate is saved from the bar of
the statute, but cannot have effect during the coverture. The
recovery, then, by the husband and wife being barred, their
grantee is in the same condition as th ough the estate were held
by them. The purchasers succeeded to their rights precisely
as they existed at the time the conveyance was executed.
Though, after the death of the husband, the purchaser may
no doubt sue for and recover the fee, as it was not barred— but
only the life estate. Gregg v. Tesson, 1 Black, 150.
It is, however, insisted, that the fourth section of the con-
veyance act (Eev. Stat. 1845, 103 ; Scates' Comp. 959) controls
the operation of the statute of limitations. That section
provides, that persons claiming title to lands, although out of
possession, and notwithstanding an adverse possession, may
sell, convey and transfer their interest in the same, as com-
pletely as if they were in actual possession of the lands ; and
the grantee shall have the same right of action for its recovery,
and in all respects derive all the benefits and advantages from
the conveyance, as if the grantor had been in actual possession
at the time of executing the conveyance. It is urged, that
this provision, where a conveyance is made by a person out
of possession, arrests the operation of the statute of limita-
1863.] Shortall v. Hinckley et al. 229
Opinion of the Court.
tions, precisely as though the grantor had acquired the
possession at the time the deed was executed; — that such a
conveyance destroys the operation of the statute up to the
time of the execution of the deed, and the full period of the
statutory limit must subsequently elapse, coupled with its
other requirements, before it can form a bar to a recovery.
The first section of the conveyance act, dispenses with livery
of seizin, as a requisite to the validity of a conveyance of real
estate. At the common law, livery of seizin was indispensable
to the complete investiture of title. To render livery of seizin
availing, it was necessary that the grantor should be in posses-
sion of premises. This provision, then, was to enable parties
to transmit real estate by deed, although not in possession,
and unable to make livery of seizin. It rendered deeds of
conveyances for vacant and unoccupied lands valid, although
livery of seizin was not made. It was also a rule of the com-
mon law, that all conveyances of real estate, in adverse pos-
session, were void, because the grantor being out of possession,
was unable to invest the grantee, and also for the reason that
the grantor was held to only have a right of action, which
was not assignable at the common law. 4 Kent, 448 ; Jackson
v. Dumont, 9 Johns. E. 55 ; Fite v. Doe & Dun, 1 Bl.
127. By various acts of parliament in Great Britain, and the
legislatures of various States of the Union, this portion of the
common law has been enacted under the title of champerty
and maintenance acts, with penalties superadded. These
sections were doubtless enacted with a view to avoid the
effects and consequences of the common law, and the ancient
champerty and maintenance laws, which would otherwise
have been in force in this State. This seems to have been the
reason that induced their adoption, and such is the full scope
of their operation.
They were not adopted with reference to the statutes of
limitation. And to give to the fourth section the operation
claimed, would be to render these statutes almost if not en-
tirely inoperative. Under such a construction, the holder of
title out of possession, would only have to make a conveyance
before the bar was complete, to arrest the statute, and require
230 O'Connor v. Union Line Trans. Co. [April T.
Syllabus.
it to again commence and run its full period, to form a bar.
And his grantee would have the same right, by similar means,
of producing the same result, and this might be continued
perpetually. This manifestly was not the design of the Gen-
eral Assembly, in adopting these provisions. And unless the
language employed was such as to preclude every other con-
struction, we cannot defeat the operation of all our statutes
of limitation, by adopting that contended for by plaintiff in
error.
The design of the General Assembly, no doubt, was simply
to invest the purchaser of premises, and those in adverse pos-
session, with all the rights of the grantor, precisely as he then
held them. Any other construction would virtually repeal the
limitation laws, in reference to real estate, and be fraught
with consequences never contemplated or intended by the
General Assembly. The plaintiff having only acquired the
rights of his grantors as they existed at the time he received
his deed, and the statutory period of limitation having run
against him and his grantors, he has no right to recover.
The judgment of the court below is therefore affirmed.
Judgment affirmed.
Mr. Chief Justice Caton concurred.
Mr. Justice Breese dissented.
Martin O'Connor
v.
Union Line Transportation Company.
1. Evidence — under plea of property in defendant, in replevin. Under
an issue upon a general plea of property in the defendant, in an action of
replevin, the defendant may show any legal title to the property, no mat-
ter how derived.
2. If the defendant show, under such issue, that the property in contro-
versy was sold by a proper officer, under a valid execution, issuea on a
valid judgment, beforethe commencement of the action of replevin, and
he had become the purchaser, it will be sufficient to sustain the plea of
property in himself.
1863.] O'Connor v. Union Line Trans. Co. 231
Statement of the case.
3. Nor will the defendant be precluded from relying upon the particu-
lar title under his general plea of property in himself, merely because he
may have set up the same title, specially, in another plea, upon which
there is also an issue.
Writ of Error to the Circuit Court of the county of
La Salle ; the Hon. Madison E. Hollister, Judge, presiding.
This was an action of replevin, instituted in the court below,
by the Union Line Transportation Company against Martin
O'Connor, to recover possession of the canal boat Powhattan.
The various issues that were formed, and the instructions
that were given and refused, are sufficiently set forth in the
opinion of the court.
The defendant below, under some of the issues, claimed
title to the property in question, under a sale made by virtue
of an execution which issued upon a judgment previously
rendered against the plaintiff.
The plaintiff contended, that the levy of the execution
upon the property was made after the expiration of the term
of office of the sheriff who made the levy, and after his suc-
cessor had been elected and qualified, and therefore the levy
and sale were made without authority, and passed no title to
O'Connor.
The question of fact thereby presented was, whether the
levy was made on the 1st day of December, or on the 18th
day of that month, as shown by the indorsement on the
execution. It appeared also, that the indorsements of the
levy and the sale were signed by Waterman, "late" sheriff.
Upon this point,
E, L. Waterman testified, on behalf of the defendant,
among other things, that he was elected sheriff of La Salle
county, in November, 1856, for the term of two years ; and
that he qualified and took possession of the office as sheriff,
about the 1st of December, 1856, He further stated, that
A. E. Grow and William B. Chapman were his deputies.
Upon being shown the indorsements on the execution, he said
that he thought most of the handwriting of the levy was Mr,
Grow's. He did not think the figure 8, in the date December
232 O'Connor v. Union Line Tuans. Co. [April T.
Statement of the case.
18, was made by Grow ; nor did he think the word " late "
before sheriff, was written by him or any of his deputies.
A. E. Grow testified, that he had no knowledge of making
any levy of any execution after Warner, the successor of
Waterman, qualified as sheriff. The main portion of the levy
in question was in his handwriting ; the word " late " was
evidently put in the levy after it was made. He was certain
he did not do it. He did not think the word " late " was there
at the time the levy was made. His judgment was, that he
did not put the word there. The "December" and " 1858"
were in his handwriting. He may have made the " 18," but
he did not make an " 8 " like that once in a thousand times.
The indorsement of the sale upon the execution was in
Chapman's handwriting. The witness did not write the word
" late " before sheriff, in that indorsement. The two " lates "
were evidently written by the same person. In the indorse-
ment of the sale, Waterman's name was not written in full ;
the latter part of Waterman's name looks as if it had been
altered into "late."
William B. Chapman, another of Waterman's deputies,
and the one who made the sale under, the execution, testified
that he made the indorsement of the sale on the back of the
execution ; the word " late " looked like an insertion ; did not
look like his handwriting. Waterman's name was not all
written in the indorsement, or else something was written over
the latter part of it.
D. L. Hough, who was the attorney of the company in the
suit in which the judgment mentioned was rendered, testified,
on the part of the plaintiff, that it was his impression that the
word "late" was in the levy the first time he saw it ; he was
not certain ; he did not see it until after the sale.
The evidence upon other points in the case is omitted, as
having no bearing upon the questions decided by the court.
The jury returned a verdict in favor of the plaintiffs below.
A motion for a new trial was overruled, and judgment
entered against O'Connor ; who thereupon sued out this writ
of error.
1863.] O'Connor v. Union Line Trans. Co. 233
Briefs of Counsel.
The plaintiff in error questions the correctness of several
rulings of the court below, as will be found in the opinion of
the court.
Messrs. Glover, Cook & Campbell, for the plaintiff in
error.
1. The instruction given by the court, at the request of the
plaintiff, was not the law, as it entirely prevented the jury
from considering the evidence with reference to the defend-
ant's second plea. This was a plea of property in the defend-
ant, and under it he was entitled to show that the boat was
his by any chain of title whatever.
2. The qualification asked by the defendant should have
been given. The defendant was certainly entitled to show
that the property was his by virtue of any legal sale, made be-
fore the commencement of the suit. If the third plea had
not been filed at all, he certainly would have had this right ;
and, by filing it, he is only bound by the averments of that
plea so far as the issue is made upon that plea. Amos v. Sin-
not, 3 Scam. 449.
3. The instruction asked by the defendant, should have been
given. Its legal effect is the same as the qualification asked to
plaintiff 's instruction, but is more fully expressed. The rea-
sons for giving the qualification apply equally to the instruc-
tion.
Mr. G. S. Eldridge, for the defendants in error.
1, The first plea admitted ownership in the plaintiff below,
and the second being a plea of general ownership in the de-
fendant, and no evidence being introduced of title in the
defendant, except through a sale under such an execution as
set out in the third plea, in which the defendant had therein
specially alleged a sale (by virtue of the execution) on the
eighteenth of December, the court might well deem that the
defendant had elected to base his justification solely upon the
state of facts set out in his third plea.
2. A party is not permitted to go to the jury upon two
30— 31st III.
234 O'Connok v. Union Line Thans. Co. [April T.
Opinion of the Court.
inconsistent and contradictory propositions. Such a practice is
calculated to mislead and take the other party by surprise, and
should not be tolerated, and the instruction given for the plain-
tiff below was perfectly proper under the circumstances.
Winchell v. Latham, 6 Cow. 682.
3. The evidence offered was entirely insufficient to show an
alteration of the return on the writ. Moreover, it was clearly
incompetent for the defendant to show an alteration, because,
first, The return could not be impeached collaterally ; second,
The defendant below had justified under a levy made on the
eighteenth of December, and was estopped after presenting one
issue, and then, when unable to maintain it, from opening
another directly in opposition to the first.
4. A party justifying under an execution sale in an action
of replevin, must plead it specially ; hence the instruction given
was correct, and the judgment should be affirmed.
Mr. E. F. Bull, for the plaintiff in error, in reply, said it
was a sufficient answer to the first and second points presented
by the counsel for defendants in error, to say, that under our
statute, a defendant may plead as many matters of fact in sev-
eral pleas, as he shall deem necessary to his defense. Rev.
Stat. 1845, p. 415, Sec. 14.
As to the fourth point ; it may be that an officer justifying
a seizure of goods by virtue of an execution, in an action of
replevin, should plead specially by setting out the execution,
etc. ; but the rule does not apply to a third person who sets up
title derived by purchase at a sale made by the officer under an
execution.
In a case like this, the defendant, under the general plea of
property in himself, may show title, by whatever lawful
means acquired, either by a voluntary sale, a conditional sale,
or pledge, or a forced sale under an execution.
Mr. Justice Bkeese delivered the opinion of the Court :
This was an action of replevin for a canal boat, to which
the defendant pleaded: first, non detmet : second, that the
boat was the property of the defendant, and the following plea :
1863.] O'CWnok v. Unton Line Trans. Co. 235
Opinion of the Court.
" And for a further plea in his behalf, defendant says actio
non, etc., because he says that heretofore, to wit, at the Sep-
tember term of the La Salle County Court, A. D. 1858, to
wit, on the 9th day of September, A. D. 1858, one Alfred
Deane, and one Marvin Blanchard, recovered a judgment
against the said plaintiff, for the sum of two hundred and six
dollars and thirty-eight cents, besides costs, which judgment
remained in full force on the 13th day of October, A. D.
1858, on which day an execution was issued out of the office
of the clerk of said court, under the seal of said court, which
execution was in due form of law, and issued upon the judg-
ment aforesaid, which execution was then and there delivered
to Eri L. Waterman, who was then and there sheriff of La
Salle county, duly qualified and commissioned ; and said
Waterman afterward, to wit, on the 18th day of December,
A. D. 1858, he being then and there acting sheriff of said
county, levied upon said canal boat, which was then and there
the property of said plaintiff, by virtue of said execution
which was then and there in his hands wholly unsatisfied ;
and said Waterman, by virtue of said execution, afterwards,
to wit, on the 19th day of January, sold said property at
public auction to the defendant, he being the highest and best
bidder therefor, and then and there delivered said boat to said
defendant, and that said Waterman duly advertised said prop-
erty for sale according to law, at the time aforesaid ; all of
which he is ready to verify, wherefore he prays judgment."
There were four replications to this plea, the first, that
Waterman was not acting as sheriff ; second, that he did not
make sale of the boat by virtue of the execution, but of his
own wrong ; third, that Waterman did not, by virtue of said
execution, levy upon said boat, but of his own wrong ; and
fourth, that on the eighteenth day of December, Francis
Warner was sheriff of La Salle county, and alone authorized
to make a levy.
Waterman himself, and his deputies, Grow and Chapman,
through and by whom the sale and delivery of the boat were
made, were examined as witnesses on the trial of these issues,
and had we been sitting as the jury, we should have found
236 O'Connor v. Union Line Trans. Co. [April T
Opinion of the Court.
that the date of the levy of this execution had been altered
from December 1 to December 18, by adding the figure 8,
and by the addition of the word " late " to the return of
Waterman. The proof certainly preponderates greatly in
favor of such a finding. All the issues upon this plea were
found for the plaintiff.
The following instruction was asked by the plaintiff :
" If the jury believe, from the evidence, that the canal boat
in controversy, down to the time of the sale thereof on the
execution in evidence, was the property of the Union Line
Transportation Company, and defendant, O'Connor, has
shown no title to said boat, or right to the possession thereof,
except by virtue of the sale on the execution in evidence, then
said O'Connor must recover, if at all, upon evidence to the
satisfaction of the jury, of the truth of his averment in his
third plea ; and said O' Connor having averred in his said plea
that the levy indorsed upon said execution was made on the
18th of December, 1858, he is estopped from now denying
that said levy was made on the said 18th day of December,
1858."
To this instruction, the defendant desired the following
qualification : " Under the plea of property, the defendant is
at liberty to prove any legal sale to him, of the canal boat,
before the beginning o£ this suit, without reference to the
date mentioned in the third plea." This qualification was
refused, and an exception taken. The defendant then asked
this instruction :
" Under the plea of property in the defendant, it is not
necessary to prove that the boat was levied on or sold on any
particular day ; it is sufficient to sustain this plea if it appears
that, before this suit was commenced, the boat was sold to
defendant under a valid judgment against the plaintiff, by
virtue of a valid execution, by a proper officer."
This instruction was also refused, and exception taken, and
these are the principal errors assigned on the record.
We are satisfied the qualification to plaintiff's first instruc-
tion should have been given, for although he had pleaded
specially in the third plea, the execution and the proceedings
1863.] Yanmeter et al. v. Dueham et al., Adm'es, etc. 231
Statement of the case.
under it, it was his privilege to show under the second plea,
any legal title to the property, no matter how derived. The
whole field was open to him under the plea of property in
himself, and therefore the court should have qualified the
instruction as the defendant desired. By refusing to do so,
the jury was precluded from an inquiry into the defendant's
title, which he had a right to insist upon.
If this boat had been legally levied on and sold, by a valid
execution issued on a valid judgment, before the commence-
ment of this suit, and the defendant had become the pur-
chaser, it was all sufficient to sustain the plea of property in
himself. The court therefore erred in refusing the instruction.
A valid judgment and execution, and a valid sale, were all
that was necessary to make a title for the defendant.
The judgment is reversed, and the cause remanded.
Judgment reversed.
Daniel P. Vajsmetes et al.
v.
Pleasant Durham et al, Administrators of Thomas
W. Lyon, deceased.
Writ — service. The return upon a summons in assumpsit was as fol-
lows: "The within named Daniel P. Vanmeter waived reading, and
accepted service, this 29th day of March, 1862." The service was insuffi-
cient to authorize a default.
Writ of Error to the Circuit Court of Kankakee county ;
the Hon. Charles R. Starr, Judge, presiding.
In an action of assumpsit instituted in the court below .by
the administrators of Lyon against the plaintiffs in error, the
summons was properly served upon one of the defendante
therein, and as to the other, the sheriff returned that " the
within named Daniel P. Yan meter waived reading, and
accepted service, this 29th day of March, 1862."
238 Oknb v. Cook. [April T.
Syllabus.
Subsequently, a default was taken against both the de-
fendants below, and upon an assessment of damages being
had, final judgment was entered ; thereupon they sued out
this writ of error, and insist that the Circuit Court erred in
rendering the judgment, because there was no service of
process upon Daniel P. Yanmeter.
Messrs. Glover, Cook & Campbell, for the plaintiffs in
error.
The return of service of a summons, which states that the
party was informed of the contents of the process, and ac-
cepted service, is insufficient. Maker v. Bull, 26 111. 348.
Messrs. Leland & Blanchard, for the defendants in error.
Mr. Ceief Justice Caton delivered the opinion of the
Court :
This is the return of service of which complaint is made :
" The within named Daniel P. Yanmeter waived reading, and
accepted service, this 29th day of March, 1862. James W.
Burgess, Sheriff." In Maker v. Bull, 26 111. 348, we de-
cided that such a service as this, is insufficient, and hence it is
unnecessary to multiply words on the subject. Our reasons
for this opinion are there given.
The judgment is reversed, and cause remanded.
Judgment reversed.
James H. Orne
v.
Isaac Cook.
1. Pleading — Practice — striking pleading from files. If a plea ia
insufficient in form or substance, the only mode of taking advantage of the
defect is by demurrer; it is improper, in such case, to strike the plea from
the files.
1863.] Orne v. Cook. 23S
Statement of the case.
2. Jury must decide facts — Courts decide the law. It would be improper
to strike out a plea because it was not supported by the proofs in the case.
The court may inform the jury what facts must be proved to sustain the
issue, but cannot determine whether such facts have been established ; thai
is the province of the jury.*
3. Statute of frauds — what is a writing. A party desiring to pur-
chase goods, wrote a letter to his merchant, stating the terms upon which
he wished to buy, and offering a certain person as the indorser of his notes ;
on the back of this letter, the party offered as indorser wrote a note accept-
ing the terms mentioned in the letter, and signed his name to it. The goods
were furnished on the faith of the promise to indorse. Held, that the ac-
ceptance of the terms of the letter written on the back of it, was a sufficient
writing within the statute of frauds, to bind the party who thus promised
to become indorser.
4. Secondary Evidence — lost instruments. And where it appears that
such letter and the indorsement thus made upon it, have been destroyed by
fire, it is competent to prove their contents and execution by parol.
Writ of Error to the Circuit Court of Cook county ; the
Hon. George Manierre, Judge, presiding.
Orne, the plaintiff in error, claims the existence of this
state of facts : that Cook, the defendant, being the owner of
the Young America Hotel, in Chicago, leased the house, in
the fall of 1854, to Hulme & White, who, desiring to furnish
the house for hotel purposes, and not having the means or
the credit to enable them to do so themselves, obtained the
promise of Cook, their lessor, to give them the use of his
name for the purpose indicated.
Soon after obtaining this promise from Cook, Hulme &
White visited Philadelphia for the purpose of making their
purchases, and while there, applied to Orne, the plaintiff, who
was a dealer in carpets, etc., and to Mr. George Henkle,
who was a furniture dealer, for credit upon such purchases
as they might make from them respectively — proposing to
give their own notes, without security, for one-third, at six
* Note by the Reporter. As to the power of the court to decide whether the
proof in a cause sustains the declaration, upon motion to instruot the jury as in
case of a non-suit, or to find for the defendant, see Felt v. Williams, 1 Scam. 306 ;
Owens et at v. Derby, 2 Scam. 26; Gillham v, State Bank, ib. 250 ; Amos v. Sinnott, 4
Scam. 447 ; Phelps v. Jenkins, ib. 51; The People v. Browne, 3 Gilm. 88 ; Tefft v. Ash-
baugh, 13 111. 602.
240 Orne v. Cook. [April T.
Statement of the case.
months ; and for the residue, their notes at twelve and
eighteen months, with interest after six months, indorsed
bv Cook.
«/
This proposition was taken under consideration by Orne
and Henkle, the latter, in the meantime, visiting Chicago to
ascertain the sufficiency of the proposed security ; and being
satisfied on that subject, he returned to Philadelphia, and
after conferring with Orne, Mr. Henkle, with his approbation,
wrote to Hulme & White, at Chicago, stating that he and
Orne would furnish the hotel upon the terms proposed, speci-
fying what those terms were. Upon this letter being shown
to Cook, in Chicago, he expressed his satisfaction with the
terms mentioned, and Hulme & White thereupon wrote to Mr.
Henkle to that effect; Cook adding a postscript to their
letter, stating that he accepted the terms, and signed it.
That letter and the postscript were mailed to Henkle, who,
upon receiving them, showed them to Orne. Henkle's estab-
lishment having been destroyed by tire, in the meantime, he
did not send any furniture ; but Orne shipped the goods which
Elulme & White had purchased from him, to the amount of
about $2,560, on the faith of Cook's promise to indorse their
paper according to the terms mentioned. Cook refused to
indorse as he had agreed ; Hulme & White became insolvent,
and Orne instituted an action of assumpsit in the court below
against Cook, upon his agreement to indorse the two notes
of Hulme & White, which were to have been given at twelve
and eighteen months.
Cook pleaded to this action,, first, the general issue, and
second, the statute of frauds : that the plaintiff had brought
his action for the default, debt and miscarriage of Hulme &
White, and for no other cause, and that the supposed promises
and undertakings of the defendant in the declaration specified,
were not, and are not, in writing, nor was any note or mem-
orandum thereof made, as required by the statute.
The plaintiff replied to the second plea, that the action was
not brought for the debt, default or miscarriage of Hulme <fr
White, in manner or form, etc.
1863.] Orne v. Cook. 241
Opinion of the Court.
The issues being formed, a jury was empanneled ; and after
the evidence was closed, the plaintiff, by his counsel, moved
the court to strike out the issue tendered by, and made upon,
the defendant's second plea, being a plea of the statute of
frauds, on the ground that said issue was immaterial, inasmuch
as the promise and agreement of the defendant, declared on
and established by the evidence, was an original, and not a
collateral one, and therefore not embraced in the statute of
frauds ; which motion was overruled by the court, and ex-
ception taken.
A verdict was returned for the defendant. The plaintiff
moved for a new trial, which was denied, and a judgment
entered in pursuance of the verdict of the jury.
The plaintiff below thereupon sued out this writ of error,
and the questions are presented, first, whether the Circuit
Court erred in refusing to strike the plea of the statute of
frauds from the files; and second, whether the verdict of the
jury was so manifestly contrary to the evidence, that a new
trial should have been granted.
The evidence sufficiently appears from the opinion of the
court.
Messrs. McAllister, Jewett & Jackson, for the plaintiff
in error.
Mr. W. T. Burgess, for the defendant in error.
Mr. Justice Walker delivered the opinion of the Court:
There was no error in refusing to strike the plea of the
statute of frauds from the files. If it was insufficient in
substance and form, the only means of taking advantage of
the defect was by demurrer. If it was sufficient as a plea, it
was for the jury, and not the court, to determine whether it
was sustained by the evidence. If the court, after the evidence
was all heard, were to assume the right to strike out a plea
because it was not sustained by the proof, the right of the
jury to try issues of fact would be violated, and trial by jury
31— 31st III.
242 Obne v. Cook. [April T.
Opinion of the Court.
thus terminated. This has never been indulged, and cannot
be, as long as trial by jury obtains. The court has the right
to inform the jury what facts must be proved to sustain the
issue, but not to determine whether such facts have been
established, and if the court thinks they have not, to take
the issue from the jury by striking out the pleadings.^
The next question is, whether the finding of the jury is so
manifestly against the evidence, that the verdict should be
set aside,' and a new trial awarded. Hulme and Henkle both
testify, that plaintiff would not have parted with the goods, if
defendant had not first agreed to indorse the notes at twelve
and eighteen months. Before the goods were purchased,
defendant was seen, and he agreed if the goods were furnished,
he would indorse for Hulme and White, to enable them to
furnish the hotel. Hulme testifies, that he wrote out a
proposition, stating the terms upon which he and White were
willing to purchase. The proposition was, that they were to
give their notes, due in six, twelve and eighteen months, the
two last to bear interest after six months, and defendant to
indorse the twelve and eighteen months notes. That when
these propositions were handed to defendant, he indorsed on
it a note, by which he accepted the terms, and signed it.
These propositions were sent to Henkle.
The witness Henkle, testifies, that he received such a letter,
and showed it to plaintiff, but says he never saw defendant
write. He however, says, that he supposes he had frequently
seen defendant's name signed to bank notes. Now Hulme
testifies, that defendant made the indorsement on the letter
and signed it, and that he sent it by mail to Henkle, who
testifies, that he received a letter, the same in all particulars.
Can it be doubted that this was the same, or that there is
proof that defendant signed the letter received by Henkle,
and upon which plaintiff furnished the goods? This identi-
fied the letter, stating the terms accepted or agreed to by
defendant, as fully as proof could be made, unless the letter
could have been produced. But having been destroyed by
lire, it could not be produced on the trial, and proof of ita
1863.] Moore v. Hoisington et at. 243
Statement of the case.
contents and execution had to be made without its production.
This we think has been satisfactorily done, and fully answers
the statute even if it was a collateral undertaking.
The evidence did not warrant the finding of the jury, and
the court below erred in refusing to grant a new trial, and the
judgment is reversed.
Judgment reversed.
John M. Mooee
v.
Jasper A. Hoisington et al.
1. Chakceky jurisdiction — contested election. A court of chancery
has no jurisdiction to inquire into the validity of elections.
2. Nor will such jurisdiction be conferred by the mere omission of the
particular case from the operation of the general law on the subject of con-
tested elections.
3. Demurrer to bill — admits the allegations. A general demurrer to a
bill in chancery admits all the facts therein stated, to be true.
Writ of Error to the Cook Circuit Court.
The plaintiff in error exhibited his bill in chancery, in the
court below, and set forth therein that an election was held on
the 4th day of November, 1862, in pursuance of law, for town
officers for the town of South Chicago, Cook county ; that
said town is divided into nine election precincts, in each of
which the polls were opened, boards of election qualified,
and votes received for the different town officers ; that said
election was conducted according to the usual custom in said
county, under the supervision of three judges or inspectors of
elections, and two clerks, at each poll, and each of said boards
kept two ballot boxes, in one of which it was designed to put
the ballots for State and county officers, and members of
Congress and the Legislature, and in the other, ballots foi
244 Moore v. Hoisington et al. [April T.
Statement of the case.
town officers ; that the two clerks kept two poll lists, which
were duplicates of each other, on which was entered the
name of each voter, without discrimination as to whether he
voted one or both ballots, each voter having the right to cast
both if he chose ; and after the polls were closed, the ballots
were counted separately, and town ballots placed in a paper
bag, sealed up, and delivered to the town or county clerk,
and the general ballots in another paper bag, likewise sealed,
and delivered to the county clerk.
The bill shows that votes were cast at said election with
other officers, for five justices of the peace, and attaches a
tabular statement showing the result as exhibited by the re-
turns for justices, except as hereafter stated, which is marked
Exhibit A, whereby it appears, and the fact is, that Aaron
Haven, Calvin De Wolf, Nicholas Berdell and the plaintiff in
error, were elected justices, and it further appears therefrom
that Charles McDonell was also elected, but whether such is
the fact or not he does not state, but he had been informed and
believed that Charles McDonell was elected instead of Jasper
Hoisington, who claims to be elected.
The tabular statement shows that Haven received 2,927
votes, De Wolf, 2,910 ; Milliken, 2,907 ; Moore, 2,896 ; Ber-
dell, 2,887; McDonell, 2,873; Hoisington, 2,869; Caldwell,
2,851 ; Summerfield, 2,850 ; and Diehl, 2,837.
The bill shows that returns were delivered to Leonard Lam-
perts, who was then town clerk, on or before the 10th Novem-
ber, 1862, from all the precincts in said town.
The bill avers that it so happened, by design or mistake
of the judges, that ballots were interchanged and put in the
wrong box, and when the polls were closed, ballots of both
kinds were found in the wrong box, and at some of the polls
such ballots were counted and returned, and at others they
were rejected, and of the latter class, at the poll for the second
precinct of the second ward, the judges found thirty-two bal-
lots for town officers in the box intended for the ballots
for general officers, which they did not count or include in
their usual certificate and return (and at the same time
found thirty -five ballots for general officers in the box
1863.] Moore v. Hoisington et al. . 245
Statement of the case.
intended for town ballots,) but counted the same, sealed
them up in an envelope, deposited them in the county clerk's
office, and made a special return, stating the facts, to the
town clerk, and of these thirty-two ballots the plaintiff in
error received twenty-five, Hoisington ten, Haven, McDonell,
Berdell and Caldwell, each twenty-five ; DeWolf, Milliken,
Summerfield and Diehl, each seven votes, for justice of the
peace, and at the poll for the first precinct of the fourth ward,
twenty-five ballots were cast for Haven, Berdell, Caldwell,
McDonell and the plaintiff in error, and seven for their
competitors, which were rejected, not counted or returned ;
and counting these votes, in addition to those shown by the
tabular statement, the majorities of Haven, Berdell and the
plaintiff in error will be increased, and the said McDonell
will be entitled to the office of justice instead of Milliken,
who now claims to be elected, from the declared result.
The bill shows that the town clerk refused, for insufficient
reasons, to call two justices and canvass the returns, until he
was compelled by a writ of mandamus given by the Cook
Circuit Court, and after said writ was ordered, on the 2nd day
of December, 1862, he called to his assistance two justices
and canvassed the returns and declared the result, and in so
doing they held that the certificate of returns from the first
precinct of the second ward showed that 369 votes were cast
for A. M. Moore, for the office of justice, and none for the
plaintiff in error, John M. Moore, and rejected said votes
from the count for the plaintiff in error ; they declared that
Haven received 2,927 votes, Berdell 2,887, McDonell 2,873,
each, and were elected, and further that the plaintiff in error
received 2,527 votes, Caldwell 2,851, Summerfield 2,850,
Hoisington 2,869, Diehl 2,837, and A. M. Moore 369 votes for
the same office.
The bill shows that the plaintiff in error had no notice of
the canvass or knowledge thereof until December 4, 1862, and
had no information that any error existed in the return from
the first precinct of the second ward until December 5, 1862.
The bill avers, that the 369 votes were in fact cast for the
plaintiff in error; that the ballots were counted for him ; that
246 Moore v. Hoisington et al. [April T.
Opinion of the Court.
the tally sheet and poll books, with the certificates thereto
attached, show that said votes were cast and counted for the
plaintiff in error, and that no ballots were cast for A. M. Moore,
and avers that the name A. M. Moore was written by one of
the clerks of election at said poll for the name of the plaintiff
in error in preparing a certificate of the result to be sent to
the town clerk, by mistake, and that said mistake was not
discovered until the canvass aforesaid.
The bill avers, that except for said mistake the plaintiff in
error would have been declared elected instead of Charles
McDonell, and if the said ballots, rejected because in the
wrong box, had been counted, the said Charles McDonell
would have been declared elected instead of Isaac L. Milliken,
but by reason of said mistake, certificates of election have
been given said McDonell and Milliken, and they, with the
said Jasper A. Hoisington, are now claiming the right tc
exercise the powers and perform the duties of said offices.
The bill prays that the return of the votes cast at said elec-
tion may be produced and canvassed, the ballots cast, properly
counted, and the result declared, and order and decree made
as equity shall require ; and that said defendants, who may be
ascertained to be exercising the duties of the office of justice
of the peace illegally, may be enjoined from performing said
duties.
There was a general demurrer to the bill ; the court below
sustained the demurrer, and dismissed the bill, at the costs of
the plaintiff in error, who now insists that the Circuit Court
erred in sustaining the demurrer to the bill, and in dismissijig
the bill and rendering judgment against him.
Mr. W. C. Gotjdy, for the plaintiff in error.
Mr. A. Garrison, for the defendants in error.
Mr. Justice Breese delivered the opinion of the Court :
The bill in this case, as appears by the record, was filed to
correct an alleged mistake in the canvass of certain votes
1863.] Moose v. Hoisestgton et al. 247
Opinion of the Court.
given for town officers at an election held on the fourth day
of November, 1862, for the town of South Chicago, in the
county of Cook. A general demurrer was filed to the bill,
which was sustained, and the bill dismissed. The cause is
brought here by writ of error, and the error assigned is, in
sustaining the demurrer and dismissing the bill.
All the facts stated in the bill are admitted by the demurrer
to be true, and the question arises, has a court of chancery, on
those facts, any jurisdiction to try the cause and afford the
relief sought ?
We have been favored with no authorities on the point by
either party, save a reference to the case decided by this court,
of The People ex reL Mitchell v. Warfield, 20 111. 159. That
case was an application for a mandamus to compel the defend-
ant, who was the clerk of Saline countv, to issue a marriage
license, application having been made to him at Harrisburgh,
then claimed to be the county seat. There was a controversy
which was the county seat, Ealeigh or Harrisburgh, and an
injunction had been granted restraining the county officers
from transacting official business at Harrisburgh, but requiring
them to hold their offices at Ealeigh. Harrisburgh claimed
to have received a majority of the votes for the county seat,
at an election held under the act of February 7, 1857, entitled,
" An act to re-locate the county seat of Saline county." The
case made by this bill for an injunction, was pending and
undetermined when the application for the mandamus was
made, and the court said, we would not undertake, under such
circumstances, to say that the county clerk was subject to a
mandamus, but would leave the rights of the contesting towns
to be determined in the chancery suit, the bill therein being
so framed as to reach the merits of the controversy.
We find in some States, by express enactment, courts of
chancery can inquire into the validity of elections by bill ;
but we have found no case in which it has taken jurisdiction
of such a case under its general powers. Nor do we perceive
a necessity for it, the general election law of the State being
sufficient to meet most cases, if not this very case. Sections
forty-two to fifty, inclusive, of the general election law, would
248 Fuller et aL v. Lang ford et ah [April T.
Statement of tlie case.
seem to provide for all cases of contested election, which were
deemed by the General Assembly of sufficient importance to
be provided for. Scates' Comp. 472.
If this case is not exactly met by that law, we are disposed,
rather than to exercise a doubtful power, to consider this par-
ticular case as omitted from the operation of the general law,
but not, on that account, conferring jurisdiction upon this
court.
Finding no case in which a court of chancery has exercised
jurisdiction on the facts stated, we must affirm the decree.
Decree affirmed.
Hernando A. Fuller, and Andrew De Graff,
v.
Joseph E. Langford, and Grice W. Thurlby.
Same
v.
Samuel H. MoPherran, and Andrew MoPherran.
Same
v.
William Irvin.
1. Attachment issued to foreign county— jurisdiction. Where a writ
of attachment is sued out to a foreign county, and there levied upon prop-
erty of the defendant, the court will acquire no jurisdiction, unless an
attachment shall also be issued to the sheriff of the county in which the
suit is instituted, and there levied upon property of the defendant, or
served personally upon him.
Writs of Error to the Circuit Court of Stephenson county ;
the Hon. Benjamin K. Sheldon, Judge, presiding.
The records in these three causes all present precisely the
same state of facts. In each case the suit was commenced
1863.] Fuller et al. v. Langford et at. 249
Briefs of Counsel.
by a writ of foreign attachment, sued out of the Circuit
Court of Stephenson county, at the suit of the defendants in
error, respectively, against Hernando A. Fuller and Andrew
De Graff, the plaintiffs in error, and directed to the sheriff of
Livingston county, who levied the same upon real estate in
that county, the property of Fuller, but no personal service
was had upon either of the defendants in the writ.
Subsequently, on the motion of the plaintiffs below, the
writ was so amended as to be directed to the sheriffs of Ste-
phenson and Livingston counties respectively, and the sheriff
of Stephenson connty then indorsed upon the amended writ
a return of no property found, and no service upon the
defendants.
Afterwards, at the instance of the plaintiffs, an alias writ
of attachment issued, directed to the sheriff of Stephenson
county to execute, who entered his return thereon, no property
found, and without personal service on the defendants, they
not being in his county. No other writ was issued, nor was
any appearance entered by the defendants.
Publication of notice being shown, a default was entered,
and a jury empanelled to assess the plaintiff's damages.
The assessment was returned, and the defendants moved to
arrest the judgment, because no writ issued to the county of
Stephenson, and because the writs which were issued were
void. This motion was overrnled, and exception taken.
The court rendered a judgment according to the assessment
of the jury, and awarded a special execution to sell the
property attached.
The defendants below thereupon sued out a writ of error
in each case, and insist that the Circuit Court had no juris
diction.
F. C. Ingalls, Esq., for the plaintiffs in error.
There was no personal service on the defendants, and no
service by levy on property in the county where the suit was
32— 31st III.
250 Drew v. Drury. [April T,
Syllabus.
commenced. The only service of any writ in the cause was
the levy on the land of H. A. Fuller, in Livingston county.
The court had no jurisdiction. Hinman v. JRushmore, 27
111. 509.
Mr. Chief Justice Caton delivered the opinion of the
Court :
Here a writ of foreign attachment was issued out of the
Circuit Court of Stephenson county, directed to the sheriff of
Livingston county, who levied it upon property of the de-
fendants. No property was found in Stephenson county, and
in fact, no writ was issued to that county, at least till after a
motion was made to quash the writ. We decided in Hinman
v. Rushmore, 27 111. 509, that, without a service in the county
whence the writ issued, the court acquired no jurisdiction.
The motions to quash should have been sustained.
The judgments must be reversed.
Judgments reversed*
Harrison Drew
William Drury.
Surety — release — extension of time of payment. The question was raised
in this case, whether a "joint and several " promissory note is within the
rule, that a valid and binding agreement to extend the time of payment to
the principal, without the assent of the surety, will operate as a release of
the latter from liability.
But the case was decided upon another question involving the weight of
the evidence.
Appeal from the Circuit Court of Mercer county ; the
Hon. John S. Thompson, Judge, presiding.
1863.] Drew v. Drury. 251
Briefs of Counsel.
This was an action of assumpsit instituted in the court be-
low, by William' Drury against Harrison Drew and William
Garrett, upon the following promissory note :
il On or before the first day of January next, we, or either
of us, promise to pay to the order of Thomas Green, one hun-
dred and twenty dollars, with ten per cent, interest from date,
value received.
WILLIAM GARRETT,
11 March 8, 1857. HARRISON DREW."
The note was assigned by Green to the plaintiff below, be-
fore its maturity. The defendant Drew, who alone was
served with process, pleaded the general issue, "and under that
plea set up as a defense, personal to himself, that he was only
a security on the note sued upon, and that he was released
from his liability thereon by reason of an agreement having
been entered into between the holder and the principal maker
of the note, to extend the time of payment, without his assent.
There was evidence introduced upon the trial in regard to
that subject, but it seems to have been insufficient to establish
the identity of this note with the one upon which the exten-
sion was given. That evidence is set forth in the opinion of
the court. However, the plaintiff below recovered a judgment
for the amount of the note and interest, and thereupon the
defendant, Drew, took this appeal.
He now insists that the judgment of the Circuit Court was
erroneous, because the evidence was sufficient to show an ex-
tension of time of payment to the principal, upon the note
sued upon ; and as that was done without his assent, he was
thereby released.
Messrs. C. S. Harris, and H. M. We ad, for the appellant,
insisted that the proof established the fact that Drury, the
holder of the note, had agreed with Garrett, the principal, for
a valuable consideration, to extend the time of payment beyond
its maturity; that Drew, the surety in the note, did uot
consent to this agreement, and therefore he was released
252 Drew v. Drury. [April T
Opinion of the Court.
Citing Walters v. Simpson et al., 2 Gilm. 574; Davis v.
People, 1 Gilm. 319 ; Warner v. Crane, 20 111. 151.
Messrs. Glover, Cook & Campbell, for the appellee, con-
tended, that it was not shown by the proof that the note abont
which the witnesses testified, was the note upon which this
suit was brought. But if it were, this note is a joint and
several note ; it is not the case of a surety at all. The lan-
guage of the note is — " We jointly and severally promise to
pay." Both makers contract with the payee as principals, and
this contract cannot be varied by parol testimony. Paine v.
Webster, 19 111. 104.
Whatever the rule in equity may be, the rule at law, they
contended, is, that as between the payee and the makers of a
note like this, both makers are principals : that where a party
purchases a note of this sort, he is to look to the note itself,
to ascertain what the liabilities of the parties are, and is not
affected by any verbal statement of the contract differing from
that mentioned in the note. And cited the following cases :
Strong v. Foster, IT C. B. 201 ; Hollier v. Eyre, 9 Clark and
F. 45 ; Ress v. Barrington, 2 Yes., Jr., 542 ; Pooley v. Hari-
dure, 7 Ellis and B. 40 ; English Law and Eq. 96 ; Ma?ileyv.
Baycott, 2 Ellis and B. 46 ; Farrington v. Gallaway, 10 Ohio,
543; Slipper v. Fisher, 11 ib. 299; Yates v. Donaldson, 5
Md. 389; Bull v. Allen, 19 Conn. 101; Kriter v. Mills, 9
Cal. 21 ; Sprigg v. Bank of Mt. Pleasant, 10 Peters, 257.
Mr. Justice Walker delivered the opinion of the Court :
Appellant insists that he was released from liability on the
note upon which this suit was brought, by the holder extend-
ing the time for its payment after its maturity. It appears
from the evidence, that appellant is only security on the note.
Willetts testified, that in October, 1857, he paid some
money on a note, being at the rate of twenty per cent., and
upon the condition, that appellee would extend the time of
1863.] Drew w. Drury. 253
Opinion of the Court.
payment. It was for interest already due, as well as for
interest still to accrue, for either six or twelve months in
advance. That at the time he made the payment, appellee
agreed to extend the time of payment, until the expiration of
the time for which the interest was paid. That he did not
remember to have seen the note ; did not know the amount ;
to whom it was given ; but understood it to be for about
$125. He thinks he paid probably about $37.50, which was
made to obtain an extension of time of payment.
When appellant learned of the transaction, a few days after
it occurred, he expressed dissatisfaction, and said, that he had
given appellee notice to sue upon the note, and if appellee
had given time, it would release him.
Whilst an extension of time for the payment of a note,
beyond its maturity, is clearly proved, yet the evidence fails
to identify it as the note sued upon in this case. The witness
did not see the note, and did not know that appellant's name
was on it. He understood it to be for a different amount
from the one in controversy. He does not give the date,
state when it was due, the rate of interest it bore, to whom
it was given, or any facts that identify it with the note in
controversy. The only evidence which might tend to prove
it to be the same, is, that it was held by appellee, but whether
as payee or assignee does not appear, and if it did, the witness
understood that he made payment on a note for a different
amount. There was no evidence showing that this was the
only note appellee held, to which appellant was a party. Taken
altogether this evidence is too weak to make out the defense,
and the finding of the jury cannot be disturbed.
The judgment of the court below must be affirmed.
Judgment affirmed.
254 Eggleston et al. v. Buck. [April T.
Statement of the case.
Lorenzo Eggleston et al.
v.
Charles T. P. Buck.
1. Judgment — form, in debt on bond. The proper judgment for the
plaintiff, in an action of debt on a bond, is, that he recover the amount of
the debt found, to be discharged by the payment of the damages and costs.
2. Parties defendant — several, or joint and several contracts. Where
a contract is several, or joint and several, the administrator of a deceased
obligor may be sued at law in a separate action.
3. Joinder of parties defendant. But the administrator cannot, in
such case, be sued jointly with the survivor.
4. Misjoinder of such parties — error. And should they be thus im-
properly sued jointly, the misjoinder would be bad on error.
Appeal from the Circuit Court of the county of La Salle ;
the Hon. Madison E. Hollister, Judge, presiding.
This was an action of debt instituted in the Circuit Court,
by Charles T. P. Buck, who sued for the use of Caroline
Gates, against Lorenzo Eggleston and Sarah A. Mills, admin-
istratrix of the estate of James M. Mills, deceased, upon an
appeal bond which was executed by Eggleston, and the said
James M. Mills, in his lifetime, in the penalty of twelve
hundred dollars.
Non est factum and nil debet, were pleaded by Eggleston,
and the same pleas, together with pleas of payment and
release, were interposed by Sarah A. Mills. The issues were
formed, and tried by a jury, who returned a verdict for the
plaintiff, Buck, and found the debt, $1,200, and $827.36
damages.
The defendants moved for a new trial, which was denied,
and judgment was entered as follows :
"It is therefore considered by the court that the said plain-
tiff have and recover of the said defendants the said sum of
$1,200 for his debt, and the said sum of $827.36 for his
damages ; also his costs and charges by him herein expended,
and that he have execution therefor."
1863.] Eggleston et al. v. Buck. 255
Briefs of Counsel.
From this judgment, the defendants below took this appeal ;
and insist that the form of the judgment is erroneous, and that
it was improper to award an execution against the defendant,
Sarah A. Mills, who was sued as administratrix.
Mr. E. F. Bull, for the appellants, relied upon the follow-
ing points and authorities :
1. The form of the judgment is erroneous. It should
have been for the amount of the penalty of the bond, $1,200,
to be discharged on the payment of the damages found by the
jury, $827.36 and costs. As that judgment was rendered,
it is excessive. Hincley v. West, 4 Gilm. 136; Austin v.
The People et al, 11 111. 452 ; Toles v. Cole, 11 111. 562 ;
Frazier v. Laughlin, 1 Gilm. 347; McConnelv. Swales, 2
Scam. 572 ; Fournier v. Faggott, 3 Scam. 350.
2. The court erred in awarding execution against the
appellant, Mills. The judgment as to her should have been,
that she pay the same in due course of administration. Green-
wood v. Spiller, 2 Scam. 504 ; Gibbons v. Johnson, 3 Scam.
63 ; McDowell, Adrn'r, etc. v. Wight, AdmW, etc., 4 Scam.
403 ; Judy ei al. v. Kelly, 11 111. 217.
The misjoinder of the parties defendant, is fatal. The
rule is laid down in 2 Williams on Executors, 1482, that the
executor of the deceased contractor, on a joint and several
bond, cannot be sued jointly with the survivor, because the
one is charged de bonis testatoris, and the other, de bonis
propriis.
Messrs. Gray, Avery & Bushnell, for the appellee,
admitted that the first and second points made by the counsel
for the appellants, were well taken, so far as they went to the
form of the judgment, but contended that, the verdict being
sufficient, the mere want of form in the judgment would not
authorize a reversal, but the court would correct it here, and
affirm the judgment.
Eggleston et al. v. Buck. [April T.
Opinion of the Court.
Mr. Justice Breese delivered the opinion of the Court :
This was an action of debt on an appeal bond in the penalty
of twelve hundred dollars, brought by the plaintiff against
the administratrix of the deceased obligor, and the surviving
obligor. There was a trial by jury, and a verdict rendered
for plaintiff for twelve hundred dollars debt, and eight hun-
dred and twenty-seven dollars and thirty-six cents damages,
on which the following judgment was entered : " It is there-
fore considered by the court that the said plaintiff have and
recover of the said defendants the said sum of twelve hundred
dollars for his debt, and the said sum of eight hundred and
twenty-seven dollars and thirty-six cents for his damages ;
also his costs and charges by him herein expended, and that
he have execution therefor/'
The points made are, that the entry of the judgment is
erroneous in this, that it should have been for twelve hundred
dollars, the penalty of the bond, to be discharged on payment
of $827.36, the damages found by the jury.
This objection is well taken. Austin v. The People, 11 111.
452 ; Toles v. Cole, id. 562.
Another objection is, that the court awarded execution
against the administratrix, when it should have been that she
pay the same in due course of administration.
A good judgment could not be rendered in this action, in-
asmuch as there is a misjoinder of parties. The administratrix
should not have been a party, and it was error to join her with
the surviving obligor. The action survived against him alone.
The very objection made, as to the form of the judgment,
shows conclusively, the improper joinder, for while as against
the survivor Eggleston, he is charged de bonis propriis, as to
the administratrix, she must be charged de bonis testatoris,
thus rendering different judgments necessary in the same
case.
The rule is well settled, if a contract is several, or joint and
several, the administrator of the deceased may be sued at law
in a separate action, but he cannot be sued jointly with the
1863.] Yanmeter^. McHard. 257
Statement of the case.
survivor, because one is to be charged de bonis testatoris, and
the other, de bonis propriis. 1 Ch. PI. 50.
In some States, as in North Carolina by statute, an admin-
istrator of a deceased joint obligor may be sued jointly with
the surviving obligor. Brown v. Clary, 1 Haywood, 107.
The judgment is reversed.
Judgment reversed.
Jacob W. Vanmeter
William McHard.
The transcript of the record in this case, showed that a summons which
issued against Jacob W. Vanmeter, was returned served upon 8. W. Van-
meter ; from the original summons, which was produced, it appeared that
service was had upon J. W. Vanmeter ; and that was sufficient.
Writ of Error to the Circuit Court of Rock Island
county ; the Hon. John W. Drury, Judge, presiding.
William McHard sued out his writ of summons in assump-
sit, in the court below, against Jacob W. Yanmeter and Caleb
M. Clark.
From the transcript of the record in the cause, it appeared
that the sheriff returned the writ, with an indorsement of
service upon the " within named C. M. Clark and S, W.
Yanmeter."
But the original writ being produced in this court, it
appeared that it was served upon C. M. Clark and J. W.
Yanmeter.
A default was entered in the court below, against both
defendants, and final judgment accordingly.
Yanmeter sued out this writ of error, alleging that it was
erroneous to enter the default and final judgment against
both the defendants, in the Circuit Court, there being no
return of service of process upon himself.
33— 31 ST III.
258 Kennedy et al., Ex'rs, etc., v. Evans. [April T.
Syllabus.
Messrs. Hawlet & Wells, for the plaintiff in error.
Mr. J. J. Beardsley, for defendant in error.
Mr. Chief Justice Caton delivered the opinion of the
Court :
The objection is, that the return of the officer does not
show a service on the defendant, Yanmeter. We have the
original before us, and it is plainly " J. W. Vanmeter," and
is sufficient.
The judgment is affirmed. Judgment affirmed.
George M. Kennedy et al, Executors, etc
v.
John Evans.
1. Surety — repose — extension of time to principal. An extension of
the time of payment of a note, by the holder to the principal debtor, with-
out the assent of the surety, until the principal becomes insolvent, will
operate as a release of the surety.
2. Release op surety — available in equity. Such defense can be
made available in equity, whether the fact of suretyship appears on the
face of the instrument or not.
3. Same — available at law. And the same rule has been applied in an
action at law, in Flynn v. Mudd & Hughes et al., 27 111. 323.
4. Parol evidence — suretyship. So, when relief is sought upon that
ground, it is competent to prove that the party was only a surety, by evi-
dence aliunde t if it does not appear from the face of the instrument itself.
5. Witness — competency — interest. A defendant in chancery called a
co-defendant as a witness in his behalf, but the witness' liability for costs
was deemed such a disqualifying interest as to render him incompetent,
except so far as his evidence had reference to the question of usury.
6. Securities for costs, and upon appeal, replevin, injunction, and all
such bonds, although more remotely liable for costs or damages, are incom
petent as witnesses.
1863.] Kennedy et aL, Ex'rs, etc. v. Evans. 259
Statement of the case.
7. Where a judgment at law has been rendered against a principal and
his surety, and the surety seeks relief in equity against the judgment, on
the ground of an extension of the time of payment of the debt having
been given to the principal debtor, before the judgment, the principal
defendant in the judgment is a competent witness in behalf of his surety
in such suit in equity.
8. Where the interest of a witness is equally balanced, he is competent
to testify for every purpose.
9. Witness — release to render competent. A defendant in chancery
desiring to call his co-defendant as a witness in his behalf, sought to re-
move his interest in the suit, which arose by reason of his liability for
costs, by giving him a bond of indemnity against loss. But this did not
avail. Such indemnity was not regarded a release.
10. Power of attorney to confess judgment — stipulation not to
interfere with judgment. A judgment was entered against the principal
and surety in a note, by confession upon a power of attorney executed by
them, which provided that no bill in equity should be filed to interfere in any
manner with the operation of the judgment entered by virtue thereof. Subse-
quently, the surety filed his bill in equity for relief against the judgment
on the ground that he was released by reason of the payee extending the
time of payment to the principal maker, before the entry of the judgment,
without the assent of the surety. The Circuit Court granted the relief
prayed for, and the Supreme Court affirmed the decree.
11. Judgment Xgainst several — whether all shall remain bound. A
judgment at law against two, may be annulled by decree of a court of
chancery, as to one, and remain binding as to the other defendant.
Writ of Error to the Superior Court of Chicago.
John Evans exhibited his bill in chancery in the court
below, on the 9th day of February, 1860, against George M.
Kennedy, Alfred A. Hallett, and Willard H. Downer, execu-
tors of the last will and testament of John D. Norton,
deceased, and Edmund Aiken, John W. Waughop, George
W. Lay and John Gray.
The bill set forth, substantially, that Waughop, desiring to
borrow money from Edmund Aiken and John I). Norton,
who were, at the time, doing business in Chicago under the
name of Aiken & Norton, the latter requested the complain-
ant, Evans, to sign a note with Waughop, as security; that
in pursuance of such request, the complainant did sign with
Waughop, a note for $1,000, dated September 4, 1858, pay-
260 Kennedy et al.y Ex'rs, etc., v. Evans. [April T.
Statement of the case.
able to the order of said Aiken & Norton, thirty days after its
date. That at the same time the complainant, with Waughop,
executed a letter of attorney in the usual form, authorizing a
judgment to be confessed upon said note at any time after its
maturity ; and that the note and letter of attorney were at
once delivered to Aiken & Norton, who thereon paid to
Waughop, as a loan, the sum of $1,000, less the interest on
that amount, for thirty days, at two per cent, per month; but
that the note, as far as the complainant was concerned, was
an accommodation note, and no part of the money advanced
thereon was ever received by him, or designed to come into
his hands.
The bill alleged that at the maturity of the note, it remain-
ing unpaid, Aiken & Norton agreed with Waughop to extend
the time of payment for thirty days, in consideration that
Waughop would pay up the interest on the amount of the
note in advance for thirty days, at two per cent, per month,
which was done, and the note allowed by Aiken & Norton to
lie over for said thirty days. That from time to time, further
extensions were agreed upon between Aiken & Norton and
Waughop, upon similar consideration, until about the third
day of February, 1860, when Aiken & Norton caused a
judgment to be entered upon the note in the Superior Court
of Chicago, upon confession under the said letter of attorney.
The complainant alleged that the several extensions of the
time of payment of the note, and the entry of the judgment
thereon, were without his knowledge or assent.
That an execution had been sued out upon said judgment,
and was then in the hands of the sheriff of Cook county,
who threatened to levy it upon the property of the com-
plainant.
The complainant charged that by reason of the extensions
before stated, the judgment was void as to him ; and if valid,
it ought to be reduced by the sums paid by Waughop for
extensions, and he be required to pay only the principal with
legal interest.
That Aiken & Norton had full knowledge, at the time they
received the note, that complainant had signed it as security
only.
1863.] Kennedy et al^ Ex'rs, etc., v. Evans. 261
Statement of the case.
It was also set forth in the bill, that in October, 1859,
Waughop made an assignment to Lay for the benefit of his
creditors, and by the assignment this note was placed in the
class of preferred indebtedness ; and alleging that the prop-
erty assigned was sufficient to pay all the preferred debts,
including the note ; and the complainant claimed that Aiken
& Norton ought to be compelled first to exhaust said assets ;
or, if he be liable on said judgment, and he thought other-
wise, he should be subrogated to Aiken & Norton's rights
under the assignment.
The complainant prayed for an injunction against any
further proceedings under the judgment or execution — that
the judgment be canceled as to him, etc.
An injunction was granted according to the prayer of the
bill. A demurrer to the bill being overruled, the defendants
answered.
The tenor of the answers was such as to put the complain-
ant upon the proof of his allegations, except as to the fact of
the entering of the judgment at law, which was admitted.
Upon the hearing, the complainant read in evidence the
deposition of Waughop, the principal maker of the note upon
which the judgment at law was entered, subject to the defend-
ant's objections as to the competency of the witness, and the
admissibility of his evidence.
On the part of the defense, the deposition of the defendant,
Edmund Aiken, was read, but as he was held not to be a
competent witness, on the ground of interest, it is not im-
portant to consider his testimony, except that portion of it
having reference to the question of competency. Touching
that question his testimony was as follows :
I have no interest in this suit. In April, 1860, previous to
taking in a new partner, Mr. Norton and I divided certain
claims of the firm which were in litigation, and for that reason
we did not wish to transfer to the new firm. In that division,
Mr. Norton took this claim, and I took another of equal
amount. He gave me an indemnifying bond, and I think I
gave him one. The firm of Aiken & Norton consisted of
John D. Norton and myself, until May, 1860, when Jonathan
Kennedy et al., Ex'us, etc., v. Evans. [April T.
Statement of the case.
Beers came into the firm. (The indemnifying bond given by
Norton to Aiken, was dated May 1, 1860, conditioned to save
harmless Aiken from all costs, charges, loss, damages or injury
of any kind, arising or accruing from or out of these proceed-
ings, or anything connected therewith, or from the said judg-
ment, or anything connected therewith.)
Upon cross-examination :
By interest in this suit I understand, being entitled to
receive any moneys collected of Evans or Waughop, or being
liable for costs without indemnification. I don' t recollect who
first proposed the assigning of my interest in this suit. This
claim, and another of equal amount, were in litigation. Mr.
Norton and I thought fit to divide them, and that Mr. Norton
might, if he desired, avail himself of my testimony, if neces-
sary, in establishing the facts. The transfer was made the
day it bears date. I had made Mr. Norton acquainted with
the facts in the case. I think he also knew the statements of
complainant's bill. I think I had told him they were not
true.
I should feel bound in honor to do what was just to Mr.
Norton's estate, if it should appear that I had misrepresented
the facts, to his injury.
The direct examination being resumed, the witness con-
tinued :
Norton took an assignment of the judgment at his own risk,
and I took the assignment of the other claims in the same
manner. There was no choice between the two claims as to
value.
The evidence introduced was quite voluminous, and estab-
lished the material allegation in the bill to be true, and as
the court below found, that complainant signed the notes as
surety for Waughop ; that this fact was known to Aiken &
Norton when they received said notes ; that upon the receipt
of the notes, Aiken & Norton, made a loan to Waughop of
$1,000, reserving usurious interest at two per cent, per month
for thirty and sixty days; that the money was paid to
Waughop, and used by him for his own purposes, no part
being used by or for complainant ; that at the maturity of the
1863.] Kennedy et aL, Ex'rs, etc., v. Evans. 268
Briefs of Counsel.
thirty-day note, Aiken & Norton, without the knowledge or
consent of complainant, in consideration of $20 paid by
Waughop for interest for the twenty days then next follow-
ing, extended the time of payment of said note for thirty
days. And thereupon it was ordered and decreed, that the
judgment rendered upon said note in said bill specified, as
against complainan.t, be and was thereby vacated and annulled,
and that defendants Aiken, Kennedy, Hallet, and Downer,
executors, etc., be perpetually enjoined from collecting, or
attempting to collect the same, by execution or otherwise,
against complainant. Further ordered, that Aiken, Kennedy,
Hallett and Downer pay the costs of this suit.
The power of attorney by virtue of which the judgment at
law was confessed, contained a clause authorizing the attorney
to file a cognovit for the amount that might be due upon the
notes therein mentioned, with an agreement therein, that no
writ of error or appeal should be prosecuted upon the judg-
ment entered by virtue thereof, nor any bill in equity filed to
interfere in any manner with the operation of said judgment.
The executors of John D. Norton, deceased, upon the ren-
dition of the decree, sued out this writ of error. The ques-
tions presented upon the record are :
First. Whether the fact of the suretyship of Evans, not
appearing on the face of the notes, could be shown by evi-
dence aliunde ;
Second. Whtether the material allegations in the bill were
proven ;
Third. Whether the extensions of time of payment to
the principal, operated to release the surety ;
Fourth. Whether the surety can make such defense avail-
able in equity ;
Fifth. As to the competency of Waughop as a witness j
and
Sixth. As to the competency of Aiken.
Messrs. Walker & Thomas, for the plaintiffs in error.
First. The demurrer to the bill should have been sustained.
I. Complainant signing the note as principal, cannot now
264 Kennedy et al., Ex'rs, etc., v. Evans. [April T.
Briefs of Counsel,
claim the benefit of suretyship. The question is not, what
were the facts as between him and Waughop, but what position
did he assume toward the payees? 19 Conn. 105; 22 111.
333 ; 1 Scam. 494 ; 3 Scam. 566 ; 2 Gilm. 266 ; 5 Taunt. 192 ;
2 Peters' U. S. 180 ; 2 Dutcher, 452 ; 21 E. C. L. 247.
II. He is estopped by the warrant of attorney under seal,
which expressly admits joint liability, authorizes a joint
judgment, and waives all defenses, legal or equitable, and
agrees that no bill in equity shall be filed to interfere with
the judgment. 1 McLean K. 389, 392; 10 Vermont, 585.
III. The warrant of attorney, as alleged, authorizes de-
fendants to enter judgment " any time after the note became
due." The time was left optional with them, and delay could
not discharge surety — it was no departure from his express
contract. 4M.&W. 519 ; 1 McLean E. 392, 393 ; 6 Madd.
Ch. E. 85 ; 5 Ohio E. 124; 8 Wheat. E. 211.
IV. The alleged extension was for a limited time, and
could not have been pleaded in bar to suit on the note, and
therefore no discharge of surety. 2 Gilm. 574 ; 13 111. 7 ;
4 Yermont, 104; 1 Parsons on Cont 514- ; 6 Gray, 319;
17 Pick. 153.
V. It was a variation by parol of the warranty of attorney
under seal, and ineffectual. 20 111. 101; 3 Mason, 446; 4
Yermont, 104 ; 7 E. C. L. 62.
YI. The contract for extension, as stated, was without
consideration and void.
1. The sole consideration for the agreement to extend, was
Waughop' s agreement to pay, and payment of usury; but
the agreement to pay usury was void. Chitty on Cont. 538 ;
2 Peters' E. 538 ; 2 Gilm.' 96 ; 22 Pick. 189 ; 7 Martin, 463,
464; 22 Conn. 447; 32 Ala. 30.
And therefore no consideration for the extension. 1 Comst.
286 ; 5 Humph. 320 ; 10 Ind. 228 ; 5 Eich. Law, 47.
The payments made on such a contract were, in law, pay-
ments on the principal, since by the statute of 1857, all the
interest was, by the agreement to take usury, forfeited, and the
creditor allowed to receive only the principal due. But such
payments on the principal, are no consideration for extension.
16 Texas, 202.
1863.] Kennedy^ <zZ.,Ex'rs, etc., v. Evans. 265
Briefs of Counsel.
2. This agreement did Dot "tie the hands of the creditor,"
for, being illegal, no action would lie for its breach. 15
Peters E. 471 ; IT Pick. 153.
Nor would chancery specifically enforce it. 1 Turner &
Eussell, 3T0; 6 Humphrey E. 277; 3 M. & K. ; 3 Dels. M.
&G.923; 15 Sim. 346.
3. The complainant by his bill insists on the penalty of
usury ; he cannot at the same time claim that the agreement
based on usury is valid. 23 Yermont, 150 ; 29 Barb. (S. 0.)
409.
4. We are not estopped to set up the invalidity of the con-
tract for extension, for the plaintiff, by his own pleading, shows
its illegality, and claims the benefit of the statute. 2 Ld.
Eaym. 1553 ; 1 Tenn. E. 95.
VII. The bill upon the charge of usury is insufficient. It
does not state that any or how much of the judgment is usu-
rious. Scates' Comp., p. 147, sec. 11 ; 3 Scam. 333.
Second. Waughop was incompetent as a witness.
I. One object of the bill was to diminish the amount of
the Aiken judgment by cutting out usury. On payment of
the judgment so reduced, Evans would be entitled to satisfac-
tion of it ; but Waughop would be liable to him only for the
amount he paid. He is therefore interested. 32 Vermont,
92 ; 9 Ind. 135 ; 8 Ind. 32.
II. If Evans be unsuccessful, Waughop will be liable over
to him for costs of this suit. Parties on a bill to enjoin a
judgment by confession, stand in the same position, as in de-
fense where suit is brought in the ordinary way. 4 Hawks,
370; 11 Peters, 95; 7 Cranch, 206.
Third, Aiken was a competent witness.
I. Being party to the suit, of itself, no objection. 3 Bin-
ney, 313; 4 Scam. 139, 150.
II. Honorary obligation no objection. 1 Turner & Eussell,
372; lPhil. Ev. 54,55.
III. He was clearly competent on the question of usury.
But the same testimony established or denied the usury and
the extensions, item by item. The extension relied on and
established by the decree, and the usury alleged to have been
34— 31st III.
266 Kennedy et al., Ex'rs, etc., v. Evans. [April T.
Briefs of Counsel.
then received, are both distinctly denied by Aiken, and the
testimony is competent.
Fourth. There is no sufficient proof of suretyship.
I. No proof of the fact. 11 Mete. 287.
II. No proof that Aiken & Norton received the note from
Evans as surety. 75 E. C. L. 55; 17 Com. Bench, 218; 2
Gilm. 266 ; 3 Scam. 566 ; 1 Scam. 494.
Fifth. There must be a positive and expressed agreement, for
a specific time, on a valuable consideration, and the contract
must be lawful. 3 Meriv. 272 ; 2 Gilm. 574. Neither is
proved.
Sixth. The decree vacates the judgment as to Evans.
But since a judgment is an entirety, the whole judgment is
thereby nullified — which is clearly erroneous.
Messrs. Clark, Cornell & Norton, for the defendant in
error.
First, The demurrer to complainant's bill was properly
overruled.
It is assumed by the plaintiffs in error that complainant
signed the note as principal.
But the bill alleges, and the demurrer admits, that he
signed it as security only, and at the request, and with the
knowledge of the payees.
But, conceding that the note, upon its face, contained
nothing to show that the complainant signed it as security,
still the law will permit him to prove this aliunde, and that
he has been discharged from his contract by the acts of the
payees. Harris v. Brooks, 21 Pick. 195 ; Carpenter v. King,
9 Met. 511 ; Orvis v. Newell, 17 Conn. 97 ; Mariner's Bank
v. Abbott, 28 Me. 280 ; Smith v. Bing, 3 Ohio, 185 ; Bank v.
Hoge, 6 ib. 19 ; Davis v. Barrington, 30 N. H. 517 ; Kelley
v. Gillaspie, 12 Iowa, 55.
Such proof does not change or vary the terms of the writ-
ten contract, but only establishes a collateral fact, and rebuts
a presumption which would otherwise attach as to the relation
of the promisors to each other, and not to the payees.
1863.] Kennedy et al., Ex'rs, etc., v. Evans. 267
Briefs of Counsel.
This was allowed in Pitts v. Magie, 24 111. 610, and mimer
cms other cases, which have received the sanction and ap-
proval of this court.
It is contended that the complainant is estopped by the war-
rant of attorney under seal, to make this defense.
But, the clause in the warrant of attorney which "waives
all defenses," and " agrees that no bill in equity shall be filed
to interfere with the judgment," must be held to have been
given, upon the implied condition, that the payees would do
nothing to change the terms of the contract, or prejudice com-
plainant's rights under it, without his consent. If this condi-
tion is broken, the agreement is no longer binding.
The rule, that an extension of the time of payment for a
limited period cannot be pleaded in bar to the suit, applies
only to parties who contract as principals, and the reason of
the rule is, that if the issue upon such a plea be found for the
defendant, it would forever bar another action upon the con-
tract.
But this reason fails, when a surety pleads a valid agree-
ment, made with his principal, to extend the time of payment
without his consent. " Cessante ratione, cessat et lexP
In the case of Veazie v. Carr, 3 Allen, 14, it is said by the
Supreme Court of Massachusetts, that by a valid agreement
to extend the time of payment, is meant, " an agreement, for
the breach of which, the principal has a remedy either at law
or in equity," not an agreement which the principal can " plead
in bar to a suit on the note " or bond.
It will not be denied, that any valid agreement between the
creditor and the principal debtor, without the consent of the
surety, to extend the time of payment for a definite period,
discharges the latter from his liability — the creditor knowing
or having notice of his relation as surety. Davis v. The Peo-
2>&j,lGilm. 319; The People v. McHatton, 2 Gilm. 638;
Gardner v. Watson, 13 111. 347.
But it is contended by the plain tiffs in error, that the con-
tract to extend, as stated in the bill, was void, because the
consideration was the payment of usurious interest, rendering
the agreement invalid.
268 Kennedy et al., Ex'rs, etc., v. Evans. [April T
Briefs of Counsel.
The payment of an usurious interest in advance, is a good
consideration for an agreement to extend.
The cases of Warner v. Campbell, 26 111. 282, and Flynn v.
Mudd, 27 111. 323, are in point, and decisive of the question.
And such is the general current of authorities. Kenning-
ham v. Bedford, 1 B. Monroe, 325 ; Austin v. Darwin, 21
Vermont, 38 ; Turrill v. Boynton, 23 ib. 142 ; Vilas v.
Jones, 10 Paige, 76 ; Draper v. Trescott, 29 Barb. 401 ; Bank
v. Woodward, 5 K H. 106 ; Wheat v. Kendall, 6 N. H. 504 ;
Dicker son v. Board of Commissioners, 6 Ind. 128 ; Lime
Rock Bank v. Mallet, 42 Me. 349.
The case in 1 Comstoek, 286, cited by the plaintiffs in error,
so far as it touches this question, is obiter, and is expressly
overruled in Draper v, Prescott, 29 Barbour, 401.
It is, therefore, not true that complainant " insists on the
penalty of usury," as stated by plaintiffs.
The court, therefore, did not err in overruling the demurrer
to complainant's bill.
Second. As to the competency of Waughop as a witness, see
the case of Miller v. McCan, 7 Paige Ch. R. 452, 457, which
is fully in point, and if it is good law, disposes of it.
To the same effect are also Allison v. Allison, 7 Dana (Ky.)
R. 91 ; Fulton Bank v. N. Y. <& S. Canal Co., 4 Paige, 127 ;
Kenninghamv. Bedford,! B. Mon, 325.
Third. Aiken was not a competent witness. He is not
only a party to the suit, but the one of all others chiefly in-
terested. He transacted tire business in its origin, and its vari-
ous stages all through, and cannot but feel a deep interest in
the result. Moreover, he is liable for costs in the first instance,
even though he has his remedy over on his bond of indemnity.
The fact of suretyship is amply proven, and a valid agree-
ment between the creditor and the principal debtor to extend
the time of payment.
1863.] Kennedy et al., Ex'rs, etc., v. Evans. 269
Opinion of the Court.
Mr. Justice Walker delivered the opinion of the Court :
The first objection urged against the decree is, that the
court permitted complainant to show by evidence, outside of
the note itself, that he was only security. The note does not
disclose the relation he bore to the contract, whether principal
or security. In Burge on Suretyship, 211, it is said, that to
enable a surety to avail himself of the defense, that time was
given to the principal, in a court of law, it must appear on
the face of the instrument, that he is such surety. If two
are bound as principals, when one in fact is only a surety,
and time has been given to the principal debtor, the surety
cannot obtain relief at law, although it will be granted in
equity. And Bees v. Benington, 2 Yes., Jr., 540, is referred
to in support of the doctrine. It will also be found, that
King v. Baldwin, 2 Johns. Ch. R. 254; Miller v. MeCan,
7 Paige, 451, and Clark v. Patton, 4 J. J. Marsh. 33, all fully
support the doctrine, that in equity, relief will be granted
although it does not appear from the note. A large number
of other cases might be referred to in support of the rule.
In fact, the rule is universally recognized and acted upon by
the courts on both sides of the Atlantic, that courts of equity
will relieve, whether it appears from the note or otherwise,
that the party was only a surety, and time has been given to
the principal without his consent. And we have applied the
same rule in actions at law. Flynn v. Mudd et al., 27 111.
323.
The question then arises, whether the defendant in error,
as he had the right to do, has shown that he was only a
surety on this note, and that further time for payment was
given the principal debtor, without the assent of the security.
If Waughop is to be credited, the facts are fully established.
But it is urged that he is incompetent to prove any fact but
usury, because he was a party to the judgment. This is a
contest between other parties, in no wise affecting his interest.
If complainant is relieved from the payment of the judgment,
still Waughop would remain liable for its payment to plain-
tiffs in the judgment, and if the bill is dismissed, his liability
270 Kennedy et ah, Ex'rs, etc., v. Evans. [April T.
Opinion of the Court.
is still the same, neither increased nor diminished. His
interest was equally balanced, and he was a competent witness
for every purpose.
The question is also presented, whether Aiken, one of the
plaintiffs in the judgment sought to be enjoined, was a
competent witness for the defendants, by whom he was called.
He was also a party to this record, and, as such, was liable for
costs. This is held to be a disqualifying interest. Securities
for costs, on appeal, replevin, injunction and all such bonds,
are held incompetent, although more remotely liable for costs
or damages. In such cases, it is the interest of the party thus
held, that judgment should be so recovered, as to relieve
them from liability. Nor can it make any difference, that he
holds Norton's bond to indemnify him against loss. It is
not a release, and it leaves him liable to pay in the first
instance with his remedy over. His testimony should have
been, and no doubt was, disregarded by the court below,
except in so far as it related to usurious interest.
Nor do we regard the evidence of Chapman and Smith as
overcoming that of Waughop. They only know, that such
money was paid, as was credited upon the books. Although
they say, that it was not paid on some of the occasions to which
Waughop refers, they must be understood as meaning, that it
was not paid to them, and they knew of no such payments.
Waughop testifies, that it was paid to Aiken. This may have
been and they not have known it. Chapman shows, that he
was inattentive to the occurrences of which he testifies, when
he says that Waughop remained at the bank after the inter-
view with Mrs. Porter and Caroline Maynard, whilst they
swear that he left the bank with them. It is true that this
witness afterwards corrects this statement, and says that
Waughop must have again returned. If he was mistaken in
that statement, no reason is perceived why he might not be in
another.
Complainant having proved that he was only a security on
the note upon which the judgment was confessed, and that
further time for its payment was given to the principal, with-
1863.] Wood et al. v. Cook. 271
Statement of the case.
out complainant's consent, until the principal became insolvent,
he was entitled to the decree which was rendered. And it
must be affirmed.
Decree affirmed.
Daniel T. Wood et al.
v.
Isaac Cook.
1. Sheriff and gollectok — offices merged. From the passage of the
act of 1839, entitled " An act concerning the public revenue," up to 1845,
the offices of sheriff and collector of taxes were distinct and independent,
neither one having any relation to, or connection with, the other.
2. But by the revenue act of 1845, the office and duties of collector are
merged into that of the sheriff ; so the office of " collector " no longer exists.
3. Deputy sheriff — bond to his principal. The statute authorizing a
sheriff to appoint a deputy, declares that any bond or security taken by a
sheriff from his deputy to indemnify such sheriff, shall be good and avail-
able at law.
4. Collection of taxes — by sheriff and deputy. It is the duty of
the sheriff as such, to collect the taxes, so soon as he executes the required
bond ; when he qualifies, his deputies are at the same moment qualified to
collect.
5. Surety of deputy sheriff — their liability. As it is one of the
duties of the sheriff to collect the taxes, and as his deputies are authorized
to perform any and all of his duties, the duty of collecting taxes is
included, and if the deputy is delinquent, his sureties are responsible.
6. Bond of sheriff — its effect. A bond executed to secure the per-
formance of " all the duties of the office of sheriff," can have no wider
meaning than the same words as used in the statute.
7. Bond of deputy sheriff — its effect. So where a deputy sheriff
executes a bond to his principal, for the performance of " all the duties
required of him as deputy sheriff," those words embrace all the duties
which are by law devolved upon the sheriff.
Writ of Error to the Circuit Court of Cook county ; the
Hon. George Manierre, Judge, presiding.
Isaac Cook, former sheriff of Cook county, instituted an
action of debt in the court below, against Daniel T, "Wood,
272 Wood et al. v. Cook. [April T.
Briefs of Counsel.
and others as his sureties, upon a bond executed by the
defendants, on the 12th day of March, 1850, the condition of
which was as follows :
" Whereas the above bounden Daniel T. Wood has been
appointed by the said Isaac Cook to the office of deputy
sheriff in and for said county of Cook ;
" Now, therefore, the condition of the above obligation is
such, that if the said Daniel T. Wood, as such deputy sheriff
as aforesaid, shall faithfully discharge all the duties required
of him as such deputy sheriff, and shall save said Isaac Cook,
and his legal representatives, harmless from all costs and
damages on account of or by reason of any and all acts of
said deputy as such deputy, or by color of his said office, then
this obligation shall be void, otherwise to remain in full force
and virtue."
Among other breaches, it was assigned that Wood, as deputy
sheriff, had collected a large amount of State and county
taxes, which he had failed to account for and pay over.
A default was entered against the defendants ; the damages
were assessed, and final judgment entered accordingly.
The defendants below bring the case to this court upon writ
of error.
The only question presented for decision is, as to the
liability of the sureties, for the default of the deputy sheriff,
in not paying over the State and county taxes collected by
him as such deputy, on the lists placed in his hands for collec-
tion by the sheriff.
Mr. Emery A. Storks, for the plaintiffs in error.
The sheriff, as such, is not bound to collect taxes ; and his
deputy is only bound to the discharge of such duties as apper-
tain to the office of sheriff.
That the offices of sheriff and collector of taxes are, although
reposed in the same individual, entirely distinct and independ-
ent in their character, will appear by a comparison of the
provisions of the statutes in relation to each.
The following have reference to the manner of qualification
1863.] Wood et al. v. Cook. 273
Briefs of Counsel.
of the sheriff, prescribe his duties, provide for the perform-
ance of the duties of his office in case of his death, etc.
Scates' Comp., p. 1122, sects. 1, 2, 5, 10 ; ib., p. 800, sees. 7,
8, 9, 10, 12, 13; ib., p. 799, sec. 1.
Those relating to the office of collector, are the following :
Rev. Stat. 1845, p. 441, sees. 27—30 ; Scates' Comp., p. 1093,
sees. 32, 33; ib., p. 1085, sec. 6; ib., p. 1023, sec. 6; Rev.
Stat. 1845, p. 446, sees. 63, 70 ; Scates' Comp., p. 800, sees.
7—9.
The duties of both offices are performed by the same indi-
vidual, but this is not a merger of one office in the other.
That they were to be regarded as entirely distinct and inde-
pendent of each other, results of a very necessity from that
provision of the statute which provides that upon a vacancy
in the office of sheriff, by his death or resignation, the coroner
is authorized and empowered to discharge all the duties of
his office. Scates' Comp., p. 1093, sees. 32, 33.
Yet, in such an event, the duties of collector of taxes are
discharged by some person especially appointed for that
purpose.
The obligation which the securities of the bond sued upon
in this case assumed, was simply to save the sheriff " harmless
from all costs and damages on account of, or by reason of any
and all acts of said deputy, as such deputy, or by color of his
said office"
The words, " by color of his said office" used in the bond,
do not enlarge the boundaries of the liability of the securities.
For these words simply relate to acts done within the limits
of official authority. Weller v. Take, 9 East, 364 ; Alcock
v. Andrews, 2 Esp. Ni. Pri. Cases, 542.
The collection of taxes not being an act done as sheriff, his
deputy, in collecting taxes, acts as the agent of the collector.
The offices of sheriff and collector are not so blended that
the bond, executed for the faithful performance of the duties
of the one, would embrace the obligations belonging to the
other. They are as distinct as though filed by different
persons. The People v. Edwards, 9 Cal. 291 ; Moore et al.
v. Foote, 32 Miss. 480 ; Crumbier v. The Governor, 1 Dever-
35— 31st III.
274 Wood et al. v. Cook. [April T<
Opinion of the Court.
eux (Law) R. 52 ; The Governor v. Barr, ib. 65 ; The Gov-
ernor v. Mattock, ib. 213 ; Jones v. Montfort, 3 Dev. & Batt.
73 ; Amos v. Johnson, 3 Harris & McHenry, 216 ; Waters v.
The State of Maryland, 1 Gill. 302.
It is a general principle that the sureties upon the official
bond of an officer are only responsible for his official acts.
Hill v. Kemble, 9 Cal. 72 ; and this rule is as applicable to the
deputy as to the principal.
Mr. W. T. Burgess, for the defendant in error.
The office of collector is merged in that of sheriff. The
collection of taxes is a part of his duty as sheriff. The deputy
is authorized to perform any and all of the duties devolving
upon the sheriff. So, if the deputy collects taxes and fails to
account for them, his sureties are liable to the sheriff. See
Jarnagan v. Atkinson, 4 Humph. 470 ; Bailey v. Lockhart,
4 Yerger, 568 ; Banner v. McMurray, 1 Dev. (N. Car.) R.
218.
Mr. Justice Breese delivered the opinion of the Court:
This was an action of debt, brought in the Cook Circuit
Court against a deputy sheriff and his sureties on their bond
to the sheriff, to save him harmless from the official acts of
the deputy. The condition of the bond was, that Daniel T.
Wood, as such deputy, shall faithfully discharge all the duties
required of him as deputy sheriff, and shall save said Isaac
Cook and his legal representatives harmless from all costs
and damages on account of or by reason of any and all acts
of said deputy, or by color of his said office.
The breaches assigned were, the collection by Wood, as
deputy sheriff, of certain moneys on execution. The other
was, that as deputy he had collected a large amount of State
and county taxes, for which he had failed to account, and pay
over.
A judgment was entered by default against Wood and his
sureties for the debt, to be discharged by the payment of the
1863.] Wood et at v. Cook. 275
Opinion of the Court.
damages assessed, and they were assessed . at five thousand
three hundred and eighty-two dollars and seventeen cents.
The record is brought here by writ of error, and the fol-
lowing errors are assigned upon it : 1, that the judgment is
against law ; 2, the bond sued on, covers acts of Wood as
deputy sheriff, and breaches assigned and the judgment, are
for his defaults as collector of taxes; 3, the declaration is
insufficient.
The only question argued is, as to the liability of the sure-
ties, for the default of the deputy sheriff, in not paying
over the State and county taxes collected by him as such
deputy on the lists placed in his hands for collection by the
sheriff.
The counsel for the plaintiffs in error, in the very able and
ingenious argument he has submitted, maintains that the
offices of sheriff and collector of taxes, are, although reposed
in the same individual, entirely distinct and independent in
their character.
He presents in parallel columns, the distinctive duties of
each of those officers, and argues from them their distinct
character. We are not disposed to deny or question the prop-
osition the counsel seeks to maintain, if it be true the offices
are distinct, but this we deny.
By the act of 1839, entitled " An act concerning the public
revenue," the County Commissioners' Courts of each county
were required, at their March term, to appoint some suitable
person to act as collector, who was required, before he entered
upon the duties of his office, to take an oath faithfully to
perform the duties required of him as collector. He was
also required to execute a bond in a penalty at least double
the amount of the tax to be collected by him, with security,
etc. From this time, up to 1845, the offices of sheriff and
collector were distinct and independent, neither one having
any relation to, or connection with, the other. Whilst the
sheriff obtained his authority directly from the people, the
collector derived his from the appointment of an inferior
court. Whilst the bond of the first named was to be approved
by the Circuit Court, that of the other was to be approved
276 Wood et al, v. Cook. [April T
Opinion of the Court.
by the County Commissioners' Court, while their duties were
wholly dissimilar. They were different persons, holding offices
distinct and independent of each other.
By the revenue act of 1845, it is provided, by section
twenty-seven, that the sheriff of each county shall be, ex officio,
the collector of taxes, and his refusal to act, shall vacate his
office of sheriff, which shall be filled as in other cases of va-
cancy. Scates' Comp. 992.
This section merges the office and duties of collector into
that of the sheriff, and though he is, in the same act, referred
to, and designated as collector, yet, as collector he no longer
has a legal existence. The use of the word " collector " in
subsequent sections of the act, does not create or revive the
office which had been before merged into another office, nor
was it the design of the legislature so to do. It would be
strange indeed, if, by one breath, an office was extinguished,
and by the same breath, it was brought again to life. The
use of this word, is but another evidence of the want of care
manifested in many of our statutes, by those who drafted and
enacted them.
After uniting the offices and imposing the duties on one
person, thereby repealing the twelfth section of the act of
1839, the remainder of this act was preserved, in various sec-
tions of which, the collector is named, such an officer not
being then known to our law, and the sections were framed
to designate them. The twenty-eighth section of the act of
1845, is identical with that part of section twelve, which
directly follows the provision in it, for the appointment of a
collector. The form and condition of the bond are the same.
Sections thirty-two, thirty-three and thirty-four, are made up
of section sixteen of the act of 1839, and in all the various
sections of the act of 1845, when the collector is named, the
sheriff, evidently, is the officer intended. How could it be
otherwise when the law says, in so many words, there shall
be no such officer as collector, but the sheriff shall be, ex officio,
such officer. The office of collector was gone, but the duties
remaining, they were upon the sheriff. This view makes the
whole statute consistent, and applies the law to the person and
1863.] Wood et al. v. Cook. 277
Opinion of the Court.
to the officer who, by the law, is required to perform the duty
of collecting the taxes.
It does not seem to follow, as argued by the defendant's
counsel, because the sheriff was required to give a bond faith-
fully to collect, that thereby this duty created an office distinct
from that of sheriff. The legislature cannot be presumed to
have designed the creation of an office, when by the very act
creating it, they had merged it in another office. The design
simply, was, to secure the State in the performance of the new
duties imposed on the sheriff.
The fact, that the sheriff was required to give an additional
bond before he could collect the taxes, cannot change the charac-
ter of the office, no more than a requirement by the legisla-
ture, that on receipt of &fi. fa., he should give a bond to the
creditor before he could proceed to collect the money on
it. Suppose the law should require this, and the deputy
should be entrusted with the writ, should collect the
money, and fail to pay it over, would not his sureties
on his bond to the sheriff be liable % Could it be permitted
them to say, the sheriff has given a special bond for the per-
formance of this duty, and to that, the injured creditor must
look ?
When a sheriff is elected, he becomes, eo instanti, the col-
lector, but as the extent of his responsibility as such, cannot
be known until the tax list is placed in his hands for collection,
his bond is measured by that list, the non-execution of which,
vacates, not the office of collector but of sheriff.
Now what is the provision of the act respecting sheriffs and
coroners ?
Section 10 provides, that it shall be lawful for any sheriff to
appoint a deputy or deputies ; which appointment shall be in
writing, tiled in the office of the clerk of the Circuit Court,
and entered of record ; and any deputy when so appointed,
and having taken and subscribed the several oaths required to
be taken by the sheriff, shall be, and is authorized to perform
any and all of the duties required of the sheriff in the name
of the sheriff; and the sheriff shall be liable for any neg-
lect or omission of the duties of his office when occasioned
by any such deputy, in the same manner as for his own
278 Wood et al. v. Cook. [April T.
Opinion of the Court.
personal neglect or omission. And any bond or security taken
by any sheriff, from a deputy to indemnify such sheriff, shall
be good and available at law. Scates' Comp. 1124.
It is made the duty of the sheriff to collect the taxes, so
soon as he executes the required bond. It is his duty as sheriff,
and in no other capacity, and when he qualifies, his deputies
are, at the same moment, qualified to collect. As it is one of
his duties to collect the taxes, and as his deputies are author-
ized to perform any and all of his duties, the duty of collect-
ing taxes would seem, necessarily, to be included, and if the
deputy is delinquent, his sureties must be responsible.
The counsel for the plaintiffs in error, insist that sheriffs
and collectors must be regarded as distinct and independent of
each other, from that provision of the statute which declares
that upon a vacancy in the office of sheriff, by his death or
resignation, the coroner is authorized to discharge all the
duties of his office, whilst the revenue law expressly provides
in such an event, that the duties of collector of taxes shall be
discharged by some person especially appointed by the County
Court for that purpose. He argues with great force, and we
confess it is a very strong point in his favor, that from this
legislation it is clear that wherever the duties of the sheriff
are spoken of, or whenever reference is made to the duties of
the office of sheriff, it includes and embraces only those duties
which the law has devolved on the sheriff as such ; and that this
is a direct legislative determination of the whole question, for
the legislature has, by the case put, declared that all the duties
of the office of sheriff may be discharged, without the dis-
charge of any of those duties which the law has devolved
upon the collector of taxes. He argues, very forcibly, if the
words " all the duties of the office of sheriff," used in the
statute, do not, as they do not in fact, embrace the duties of
collector of taxes, it must follow, the same words used in a
bond could have no wider meaning, nor be considered as of a
more comprehensive character
This is put very strongly, but we do not think it is decisive
of the question, for the reason that the bond in this case is
1863.] "Wood et at. v. Cook. 279
Opinion of the Court.
not for the performance of all the duties of the office of sheriff,
but it is, for the performance of "all the duties required of
him as deputy sheriff."
By the law, the sheriff is required to collect the taxes, his
deputy is required to perform any and all duties imposed on
the sheriff, therefore he is required to collect the taxes, and
he so undertakes by his bond. This is the covenant of the
parties.
Some cases are referred to by the plaintiffs' counsel, which
we have examined.
The first is the case of The People v. Edwards, 9 California,
291. By the law of California, the sheriff is made ex officio)
tax collector, and it provides that he shall be liable on his
bond for the discharge of his duties in the collection of taxes,
and does not require the execution of any new bond ; nor is
any other bond required than the one executed by him as
sheriff, except when he acts as collector of taxes for miners'
licenses. The bond in suit was deemed to have been executed
in view of the provisions of the revenue act. For mone37s
collected for foreign miners' licenses, the court say the de-
fendants are not responsible, but all delinquencies in the col-
lection of other taxes are covered by the bond in suit.
This court would decide the same way, were the sureties
of the sheriff on his bond, as such, sued for his delinquency
in not paying over the taxes. They would not be responsible
because of the special bond which he has given to cover
such a delinquency.
As to the idea entertained by that court, and by the court
of Mississippi in the case of Moore et ah. v. Foote, Governor,
32 Miss. 480, also cited by plaintiff's, that the offices of col-
lector and sheriff are separate and distinct, it must be based
on some provision of a statute differing from ours with which
we have not been favored.
The California case decides, and in this we concur, that the
ordinary duties of sheriff relate to the execution of the orders,
judgments and process of the courts ; the preservation of the
peace ; the arrest and detention of persons charged with the
commission of a public offense ; the service of papers in actions,
280 Wood et al. v. Cook. [April T.
Opinion of the Court.
and the like, and that they are, more or less, connected with
the administration of justice, but there is nothing in the
office to inhibit the legislature from imposing other duties
upon them, even if incongruous in their nature.
But there is really no incongruity between the collection of
taxes on a warrant or tax list, which empowers the sheriff to
levy and sell in case of default, and the collection of money on
an ordinary^, fa. In fact, the one is quite germane to the
other.
The cases cited from 1 Devereux, (N". C.) we have not been
able to examine, but we have examined the case of Jones v.
Montfort, 3 Dev. & Bat. 73, which refers to, and approves
them.
The case of Jones v. Montfort, was debt upon a bond exe-
cuted by the defendants as sureties of one Fonville, for the
faithful discharge of his duties of sheriff. The breach as-
signed, was, that the sheriff had not paid over to the wardens
of the poor, the parish taxes for the year 1831.
Upon oyer, the condition of the bond declared on, was, that
Fonville should well and truly execute, and due return make,
of all process and precepts to him directed, and pay and satisfy
all fees and sums of money by him received, or levied, by
virtue of any process, into the proper office to which the same,
by the terms thereof, ought to be paid, etc., and in all other
things, well, truly and faithfully execute the said office of
sheriff during his continuance therein.
The Circuit Court ruled the default assigned as a breach,
was not within the condition, and this decision was affirmed
on appeal to the Supreme Court, and very properly, as we
think, but we do not see its application to this case, or its
precise bearing upon it. It is undoubtedly good law.
The case of Amos v. Johnson, 3 Harris & McHenry, 216,
is also cited. The bond sued on in this case, was given by a
deputy sheriff, with the condition, that he would well and
faithfully make return of all such sums of money, or tobacco,
as he might receive, during the sheriffship of the sheriff, either
by taxes, fines, penalties, etc., that might be put into his hands
for collection. The cause was referred to arbitrators, who de-
1863.J Wood et at. v. Cook. $81
Opinion of the Court.
cided, that the condition of the bond extended only to the
duty of a deputy sheriff, and not to the collection of public
assessments with which the plaintiff might have been entrusted
by the State. The plaintiff put in his caveat to the award, and
assigned for reason, that the arbitrators were mistaken in
point of law, inasmuch as the condition of the bond did in-
clude the public taxes of the State and county of Harford.
The caveat and reason was overruled by the court, and
judgment entered on the award, and on appeal the judgment
was affirmed. The case was not argued, nor does the court
give any reason for its judgment, nor do we know what the
law of Maryland was on this subject. If that law made the
sheriff collector of the public revenue, and imposed it as a
duty on him, and authorized and required the deputy sheriff
to do and perform any and all of the duties of sheriff, we
think, with due deference, the arbitrators and court decided
wrong, and are not inclined to the authority of the case.
We do not see the bearing of the case in 4 Gill 302, on
this case.
On behalf of the defendant in error we have found the
case of Jamagin v. Atkinson, 4 Humphreys, 470, which was
a motion by the sheriff against his deputy, for failing to pay
over taxes collected by him as deputy sheriff, wherein it was
urged, that the bond of * the deputy, which was given for the
faithful performance of the duties of deputy, was not broad
enough to cover this responsibility ; that the office of sheriff
and collector of the revenue, are distinct and separate offices,
and the deputy sheriff was not the deputy collector.
The court said, it has been held in this State that the col-
lection of the revenue is devolved by law, upon the sheriff ;
and although he gives a bond as collector, yet he collects as
sheriff, and not under a distinct, separate authority created
by another office. This being so, the deputy sheriff may
collect ; and if in doing so, he act so negligently or faithlessly
as to charge his principal, he is responsible therefor as deputy
sheriff, and, of course, his securities.
This case "runs on all fours" with the one before us — it
is a case " in point," and decided by a most able and re-
36 — 31st III.
Wood et al. v. Cook. [April T.
Opinion of the Court.
spectable court, and the decision is in full accordance with our
views.
Since, then, it was the duty of the sheriff to collect the
taxes by virtue of his office as sheriff, and in no other capacity,
and as the deputy is authorized and required to perform any
and all duties imposed on the sheriff, we think his bond
is broad enough to cover the default with which he is
charged in the declaration, and his sureties must answer for
it, if proved.
Any other decision would bring great injury in its train,
for the reason that deputy sheriffs have, for near twenty years,
collected for the sheriffs, the public taxes, and given their re-
ceipts therefor, and if they had no power to collect these
taxes, these receipts might be declared void, and those who
claim titles to land in virtue of color of title and payment of
taxes for seven successive years, and they are now a vast
number in our State, such taxes having been paid to deputy
sheriffs, would lose their possessions. It will not do to say, that
it might be urged, they acted as agents of the collector in
receiving the taxes, and the courts would so consider them.
This is quite uncertain — they acted as deputy sheriffs, as their
receipts will show, and not as agents ; and the court might not
be willing to say, that an act done as deputy sheriff, and sc
certified, was not so done. But we think, there should be
no doubt of the authority of a deputy sheriff to receipt for
taxes in the name of the sheriff, and that too, by a fair con
struction of the revenue act of 1845, and of the act respecting
sheriffs and coroners.
Such, too, has been the public judgment of the laws, and
a uniform and general practice has obtained throughout the
State in conformity therewith, and under which, titles to land
are asserted and recognized. The practice under a law, is
strong evidence of what the law is. " Contemporanea ewpotitio
fortissimo, est in lege"
The judgment must be affirmed. Judgment affirmed.
In this opinion, Mr. Justice Walker concurred.
Mr. Chief Justice Caton dissented.
1863.] Warner v. Cushman et al. 283
Statement of the case.
Pbancis Warner
v.
William H. W. Cushman et al.
1. Replevin — when it will lie. A party owned a quantity of corn
which had been purchased for him by a warehouseman, who put it in a
mixed mass with other corn, owned by different persons, who had stored
their corn with the warehouseman. The warehouseman delivered the
whole of the corn, in its mixed condition, to the party for whom he had
been buying, from whose possession it was afterwards wrongfully taken by
a third party. The party from whose possession the corn was thus wrong-
fully taken, recovered it by action of replevin.
2. Payment of debts with property of others — liability to the real owners.
It seems the party thus receiving from the warehouseman the corn of
other persons, if he applied it to the payment of a debt due to him from
the warehouseman, would be liable to the real owners.
Writ of Error to the Circuit Court of the county of La
Salle ; the Hon. Madison E. Hollister, Judge, presiding.
This was an action of replevin brought by William H. W.
Cushman, Isaac V. Waterman and William M. True, who were
partners, under the firm and style of Cushman, True & Co.,
against Francis Warner, to recover the possession of seven
thousand bushels of corn, which it was alleged in the affidavit,
the plaintiffs below were justly entitled to, and which War-
ner had unjustly and unlawfully taken, and then detained
from them.
The defense set up by Warner was, that he took the corn in
controversy, and detained the same, by virtue of an execution
to him directed, as sheriff of the said county of La Salle,
which execution was issued out of the Superior Court of Chi-
cago, upon a judgment previously rendered therein, in favor
of William Martin against Micaiah F. Fairfield and John D.
Weld, alleging that at the time said execution came to hie
hands, and was levied upon the corn, it was the property of
Fairfield & Weld, and liable to be taken and sold on said
execution.
284 Warner v. Cushman et al. [April T.
Statement of the case.
Upon the trial of the cause, the plaintiffs below introduced
Micaiah F. Fairfield, as a witness on their behalf, who testi-
fied that he and Weld were partners in the business of buying
and storing grain in Ottawa, in November and December,
1859. That on the premises occupied by them were three
cribs for storing ear corn, and that on the twenty-second day
of said December there were in said three cribs about 14,000
bushels of ear corn, being the same corn in controversy, and
other corn belonging to Herford, Olmstead, Umlauf, Harding
and others, who had stored corn with them, and the corn of
those persons was mixed by Fairfield & Weld, by consent of
Herford, Olmstead, Umlauf, Harding and others, so that the
corn replevied, and that of said last named persons, formed a
mixed mass in said three cribs, and that the fourteen thousand
bushels continued so mixed together until the seven thousand
bushels were replevied and separated from the mass, and taken
away by the coroner by virtue of the writ of replevin in this
case.
In the latter part of November, a small amount of ear corn
was placed in some of said three cribs, but the main portion
of 14,000 bushels was placed in the three cribs between the
1st and 22nd of December, 1859. In the latter part of
November, 1859, it was agreed between Fairfield & Cushman,
for their respective firms, that Cushman, True & Co., who
were bankers, should furnish Fairfield & Weld money to
the extent of thirty cents a bushel, to be used in the pur-
chase of corn ; that corn purchased with said money should
be for Cushman, True & Co., and become, when so purchased,
their corn ; that said Fairfield & Weld should store said corn
and pay all the expenses of taking care of and shipping the
same ; that upon the sale of said corn, which should be
shipped to such persons as said Cushman, True & Co. should
direct, and when they should direct, said Cushman, True &
Co. should receive from the proceeds the money advanced by
them, together with one and a half per cent, a month interest
thereon ; that Fairfield & Weld were to pay all expenses,
including insurance, and Cushman, True & Co. were to be
repaid the money advanced by them, and said interest on said
1863.] Warner v. Cushman et al. 286
Statement of the case.
money, and nothing more, and all the profits were to be
Fairfield & Weld's ; that Fairfield & Weld, when money was
advanced to them, gave their notes to Cushman, True & Co.
for the amount advanced, and the interest ; that in November
and December, 1859, Fairfield & Weld gave to Cushman,
True & Co., warehouse receipts, purporting to be for corn in
store, as described in the receipts hereinafter mentioned, dated
December 22, 1859 ; that when they issued the warehouse
receipts, True, one of the plaintiffs, objected to the phrase in
the warehouse receipts, " at owners' risk," and the same was
stricken out; that the value of the corn in- said warehouse
receipts was about $400 more than the money so advanced by
Cushman, True & Co. — they advanced about $3,800.
When the arrangement was made to advance the money,
Cushman requested Fairfield to keep the corn purchased with
money furnished by Cushman, True & Co., separate. Fair-
field said it would be inconvenient to do so, and made no
agreement that he would do so, and did not, in fact, keep it
separate, but mixed the corn purchased with plaintiffs' money
with the corn of the others who stored grain with them ; that
the corn purchased with plaintiffs' money, and stored in said
three cribs, amounted to about seven thousand bushels. Did
not remember ever having any conversation with John D.
Olmstead on the subject of the arrangement between Fairfield
& Weld and the plaintiffs below, in relation to the terms upon
which plaintiffs were to advance money. On the 9th of
March, 1860, the defendant, Warner, took possession, as
sheriff, of all the corn in the three cribs. On the first of
March, 1860, Fairfield delivered to plaintiffs below the pos-
session of the corn in said cribs, as the corn purchased for
them, for the purpose of satisfying said corn receipts. Plain-
tiffs below put a fence around the three cribs. Defendant
below broke the enclosure, and took possession of the three
cribs of corn.
Cross-Examinahon Defendant proved by said Fairfield
the execution of the following receipt by True, one of the
plaintiffs below, mi read 'die same in evidence :
286 Warner v. Cushman et al. [April T.
Statement of the case.
" Received of Fairfield & Weld the following grain receipts
and notes, as collateral security for the payment of their
indebtedness to us :
Nov, 23. Receipt for 3,000 bushels of corn at Ottawa.
" 28. " " 2,000 " " " " "
Dec. 5. " « 2,000 " " " " Utica.
" 5. " " 2,000 " " " "Ottawa.
« 14. " " 1,000 " " « " "
« 19. " " 1,000 " " " " "
" 12. Notes of sundry persons to the amount of
$882.58.
CUSHMAN, TRUE & CO."
" Ottawa, December 22, 1859.
The defendant (plaintiff in error) proved that a judgment
was rendered, in the Superior Court of Chicago, on the 20th of
December, 1859, in favor of William Martin against Fairfield
<fc Weld, for $9,404.58, and costs ; that an execution was issued
upon said judgment, December 20, 1859; that defendant was
then sheriff of La Salle county, duly elected and qualified ;
that said execution came into his hands, as such sheriff, on the
22nd day of December, 1859, and that the same was levied
upon all the corn in the three cribs, on the 9th day of March,
1860.
John D. Olmstead testified, that in November and Decem-
ber, 1859, he stored about 1,500 bushels of corn with Fair-
field & Weld, which was placed in the cribs out of which
the corn was replevied ; that his corn was mixed with the
other corn in the cribs, and was taken by the plaintiffs on
their writ of replevin ; that he knew of no arrangement
between plaintiffs and Fairfield & Weld, that the latter were
to keep plaintiffs' corn separate. Fairfield told witness that
Fairfield & Weld were hiring money of the plaintiffs to use
in the purchase of grain. Witness was engaged in the ware-
house business ; had stored a good deal with others ; that the
usual custom in Ottawa was to mix the corn of different
owners together, they to receive a like quantity and quality,
but not the same corn. That True, one of the plaintiffs,
passed the place of business of Fairfield & Weld daily, in
1863.] Warner v. Cushman et at. 287
Briefs of Counsel.
going from his place of business to his dwelling-house ; ;;hat
Fairfield & Weld, in November and December, 1859, were
warehousemen, engaged in buying and storing grain — corn,
oats, wheat, etc.
Harding testified that he was a farmer ; stored corn with
Fairfield & Weld in the winter of 1859 — about December of
that year ; that his corn went into said cribs from which the
corn was replevied, and was mixed up with the other corn
therein.
Fairfield^ being recalled, said that the arrangement between
him and Cushman was made before any corn was stored in
the cribs, and that he built the cribs himself.
Upon this evidence and several instructions given by the
court, which it is not material to notice here, the cause was
submitted to the jury, who returned a verdict for the plain-
tiffs below. The defendant interposed a motion for a new
trial, which was overruled, and a judgment was entered in
pursuance of the verdict of the jury. The defendant below
thereupon sued out this writ of error, upon which the question
arises, whether the corn in controversy was the property of
Fairfield & Weld, and subject to the execution against them.
Messrs. Leland & Blanch ard, for the plaintiff in error,
insisted that upon the proofs it was clear that Cushman, True
& Co. knew the corn which was being purchased by Fairfield
& Weld, with money advanced by them, was not being kept
separate from that which was being stored for other persons ,
and by the law, as settled in Low v. Martin, 18 111. 286, the
plaintiffs below could not recover.
The interest of the plaintiffs being an undivided one, the
action should have been trover, so that justice could be done
by fixing the proper measure of recovery in the verdict.
Messrs. Glover, Cook & Campbell, for the defendants in
error.
The whole of the corn had been lawfully in the custody of
Fairfield & Weld, and was by them turned out to Cushman,
288 Warner v. Cushman et al. [April T.
Briefs of Counsel.
True & Co., who became thereby lawfully in possession of it.
The action of replevin is a possessory action, and the plain-
tiffs below having the right of possession as against the
sheriff, they can maintain this action. Warner v. Malthus,
18 111. 86 ; Anderson v. Talcott, 1 Gilm. 265 ; King v. Ram-
sey, 13 111. 619; 1 Greenlf. Ev., sec. 532; Wallace v. Clark,
7 Ind. 298.
.Replevin lies where trespass might be brought ; possession
by the plaintiff, and an actual wrongful taking by the defend-
ant, are sufficient to support the action. Pangbom v. Par-
tridge, 7 Johns. K. 140 ; Marshall v. Dams, 1 Wend. K. 109 ;
Rogers v. Arnold, 12 Wend. R. 30 ; Blue v. Leathers, 15
111. 32.
If the corn of Cushman, True & Co. was mixed with the
corn of Olmstead and others, by the consent of all parties,
then the several proprietors had a property in common in the
whole, according to their respective portions put in mass.
Low v. Martin, 18 111. 286 ; Story on Bailment, Sec. 40 ; 2
Bl. Com. 405.
In such case, Fairfield & Weld had no interest in the corn
upon which the lien of the execution could attach. The corn
had been delivered to Cushman, True & Co. for the purpose
of having their portion of the corn separated from the mass,
and the residue delivered to the owners. The possession of
Cushman, True & Co. was a lawful possession. They had the
absolute possession and the absolute right to it, except as
against Olmstead, Herford, Umlauf and the other storers ;
and in replevin, absolute possession of property, combined
with the absolute right to it, except as against some person
other than the defendant, will entitle the plaintiff to maintain
his action. This was expressly decided in Johnson v. Carnly,
10 N. Y., 6 Seld. 570.
It is contended that Cushman, True & Co. could not
replevy their own corn which bad been wrongfully taken
from them, because it was mixed with corn belonging to
others. But the corn belonging to Cushman, True & Co. was
not mixed with their consent.
Cushman, True & Co., by receiving possession of all the
1863.] Warner v. Cushman et al.
Opinion of the Court.
corn, became liable to account to the other owners for their
respective portions, and they had a right to regain the posses-
sion in this form of action.
Messrs. Leland & Blanohard, for the plaintiff in error, in
reply.
A distinction is sought to be taken between the case of
Low v. Martin and the one at bar, in this, that if the plain-
tiffs did not acquiesce in the mixing of the corn purchased
with the money loaned by them, with that of other storers
with Fairfield & Weld, they had a right to replevy out of the
mixed mass as much corn as was purchased with the money
loaned for that purpose. But all the authorities agree that
an action of replevin can only be maintained for property
capable of identification, and delivery by the sheriff to the
plaintiff, and never by a tenant in common for an undivided
interest in chattels, and this principle is settled in the case of
Low v. Martin.
Mr. Chief Justice Caton delivered the opinion of the Court :
We can see no pretense for holding that this corn was sub-
ject to the execution against Fairfield & Weld. When the
corn was purchased by them, with the money obtained from
Cushman, True & Co., it was expressly agreed, that the
title to the corn should remain in the latter firm till it should
be sold and converted into money; and long before these
creditors of Fairfield & Weld had acquired any lien upon it,
Cushman, True & Co. had reduced the corn into their actual,
physical possession. If they also took possession of other
corn belonging to Olmstead and others, who stored with
Fairfield & Weld, this was no business of the creditors of
this house. It did not subject the corn to their execution,
and if taken and applied to the payment of their debt, Cush-
man, True & Co. are responsible to the real owners. The
case is so plain that we can see no real question in it.
The judgment is affirmed.
Judgment affirmed.
37— 31 st III.
290 McLean County Bank et al. v. Flagg. [April T
Statement of the case.
The McLean County Bank et al.
v.
William F. Flagg.
1. Sales on execution — divisibility of property. The statute regulat
ing sales on execution, was not designed to authorize the sheriff to divide
entire parcels of real or personal property, in such a mode as to become
oppressive or injurious to the parties.
2. It is the duty of the officer to sell the property in such manner, as to
quantity, as will produce the largest price, with the least injury to the
debtor.
3. When the articles of property, or the tracts of land, are several, then
the sale should be several ; but when different tracts of land have become
one, by extending buildings over portions of all, they lose their several
character, and should be sold en masse.
4. Process— power of courts over it. The power over its own process is
possessed by all courts; such power is an equitable jurisdiction that is
inherent in courts of law, as well as courts of equity.
5. Sales on execution — set aside on motion. As between a purchaser,
and the original parties to a suit, a court of law will not hesitate to set
aside a sale made under its own process, for irregularity.
6. Same— notice— parties and attorneys. Where the purchaser is
an attorney of record, and the beneficial plaintiff in the judgment, he must
take notice of irregularities in the sale.
Writ of Error to the Circuit Court of McLean county;
the Hon. Charles Emerson, Judge, presiding.
This case arises upon a motion made in the court below, to
set aside a sale of certain real estate in the city of Blooming-
ton, in the county of McLean, made under an execution which
issued from that court.
The execution was issued upon a judgment which had been
rendered in the Circuit Court, in favor of the McLean County
Bank against Flagg, the defendant in error ; and coming to
the hands of the sheriff of said county, was by him levied on
lot six, in block eighteen, in the Durley Addition to Bloom-
ington, and lots three, four, five, six, seven and eight, in block
two, in K. H. Fell's Second Addition to Bloomington, as the
property of Flagg.
1863.] McLean County Bank et al. v. Flagg. 291
Statement of the case.
Subsequently, on the 11th day of December, 1861, the
sheriff proceeded, in pursuance of the levy, to make sale of
the lots separately, and at the following prices respectively :
Lot six, in block eighteen, in the Durley Addition, for the
sum of $700 ; lot six, in block two, in Fell's Addition, $300 ;
lot seven, $300; lot eight, $50; lots three, four and five,
$25 each; the entire sale amounting to $1,425. Asahel
Gridley, who was the attorney of the bank, and the beneficial
plaintiff in the execution, being the owner of the entire stock
of the bank, became the purchaser. He paid no money upon
the purchase, but directed the amount bid, to be credited on
the judgment, which was done. From the evidence intro-
duced in support of the motion, it appeared that, at the time
of the sale, there were buildings upon a portion of the lots
in question ; that one of said buildings was built of brick, was
three stories high, and one hundred and sixty feel? long,
extending over more than half the width of lot six, in the
Durley Addition, entirely across lot six, and over at least one-
half the width of lot seven, in Fell's Addition ; those three
lots lying adjacent to each other. That said building was
then being used for the manufacture of reapers and mowers,
was filled with machinery adapted to that purpose, the
machinery being attached to the building; one end of the
building was used for the making of castings, and the other
for manufacturing those castings into reapers and mowers.
That all of said machinery was connected together and moved
by a steam engine, stationed at one end of the building. That
the building was an open building without any division, and,
together with the machinery, cost $26,000, and at the time of
the sale, was worth sixty per cent, upon its cost.
Another of the buildings on the premises, was two stories
high, and stood upon two of the lots ; a portion upon lot six,
in the Durley Addition, and extending over upon lot iive, in
Fell's Addition, the two lying adjacent. This building was
used in connection with the manufactory ; in the winter for
storing machines, and in summer for manufacturing purposes.
The third building which was a shed used for storing
machines, stood upon four of the lots, a small part upon lot
292 McLean County Bank v. Flagg. [April T.
Briefs of Counsel.
six in the Durley Addition, extending entirely across lots six
and seven, and over more than half the width of lot eight, in
Fell's Addition.
The two latter buildings were also open buildings, and not
separated at the lines of the lots.
All of these buildings were of the value of $2,000, divided
by the line of the lots, and were worth $30,000, each building
taken entire.
Flagg entered his motion in the court below, to set aside
the sale.
1. Because the premises sold, were indivisible, by reason
of having one large machine shop extending over and upon
them all ; and the officer making the sale arbitrarily divided
the same, and sold the shop and building in separate pieces ;
and
2. Asahel Gridley, the purchaser, was chargeable with
notice of the irregularities.
The motion was sustained by the Circuit Court, and it was
ordered that the sale be set aside, and wholly held for nought.
Upon that order, the Bank and Gridley, the purchaser, sued
out this writ of error.
The assignment of errors, alleges that the court below
erred in sustaining the motion, and in entering the order
setting aside the sale,
JFi/rst. Because the sale was made according to law ;
Second. The land having been purchased by a person not
a party to the execution, and the judgment having been cred-
ited by the amount of the bids, the remedy of the defendant
in error, if any he has, is in chancery, and not in a summary
proceeding by motion, as in this case.
Mr. C. H. Moore, for the plaintiffs in error.
First, The lots, on which the buildings were situated,
were legally subdivided. Section 10, ch. "Judgments and
Executions," (Rev. Stat. 1845, 302; Scates' Comp. 604) leaves
it to the discretion of the officer, how he will divide the
property, and the quantities in which he will sell.
1863.] McLean County Bank et al. v. Flagg. 293
Opinion of the Court.
Second. The defendant having time in which to redeem,
cannot be injured by a sale of the lots separately. If sold
for less than their value, it will require a smaller amount to
redeem. And he may redeem all, or a part of the lots sold.
Robertson et al. v. Dennis, 20 111. 313.
Third. The purchaser not being a party to the judgment
or execution ; and the amount of the bids having been credited
on the judgment, the defendant's remedy is in chancery, where
complete relief can be given.
Mr. B. C. Cook, for the defendant in error, insisted that
the gross injustice done, in selling property worth $30,000, in
such manner as to reduce the value to $2,000, would justify
the court below in setting aside the sale.
Mr. Justice Walker delivered the opinion of the Court :
The execution under which the sale was made, was levied
upon seven town lots, which were separately offered and sold
to plaintiff in execution. The evidence discloses the fact,
that on three of them, lying contiguous to each other, a large
three-story machine shop had been erected, one hundred and
sixty feet in length. In this building, at the time of the
sale, there was in use a large quantity of machinery, employed
in the various departments of the manufacture of reapers,
which was driven by an engine, situated at one end of the
building. Another building, two stories high, was situated
on two other lots. This latter building was used as a shop,
and for storing machines. A third building is on two other
lots, but is not disconnected at the line between them. The
purchase under the execution was made, by the plaintiff's
attorney of record, on separate bids on each lot, amounting,
in the aggregate, to the sum of $1,425, whilst the evidence
strongly tends to show that the property was worth near
thirty thousand dollars.
The purchaser was the president of the bank, who owned
all of the stock, and who paid nothing on the purchase. Is
such a sale warranted under an execution? May property
294 McLean County Bank et at. v. Flagg. [April T.
ODinion of the Court.
undivided, worth thirty thousand dollars, be sold in such
portions as to render it worth but two thousand ? The tenth
section of act regulating sales on executions at law provides,
that " when any property, real or personal, shall be taken in
execution, if such property be susceptible of division, it shall
be sold in such quantities as may be necessary to satisfy such
execution and costs." Was this property susceptible of a
division, in the mode adopted by the officer conducting this
sale ? It manifestly was not, without great prejudice to the
owner. This statutory provision, was not designed to author-
ize the sheriff to divide entire parcels of real or personal
property, in such a mode as to become oppressive, or injurious
lu the parties. It was to require him, to so divide the property
as to satisfy the judgment and costs, and at the same time
produce the largest price. And he is only authorized to do
so, when the property is susceptible of division, without
injury.
Many articles of personal property are not capable of di-
vision, without its total destruction for the use for which it
was designed, yet the material separated, as such, would be
amply sufficient to paj' the debt and costs. In the adoption
of such a mode, injury might result to an extent many fold
greater than the debt. Such a course would produce one of
the injuries designed to be prevented by this enactment.
It is the manifest duty of the officer, to so sell the property
as to produce the largest price, and the least injury to the
debtor. If that can be done by a division, such a course
should be adopted ; but if the sale of the entire property
would produce that result, it should not be divided. When
the articles of property, or the tracts of land, are several,
then the sale should be several. But when different tracts of
land have become one, by extending a building over portions
of all, they, by the use to which they have been appropriated,
lose their former several character. The buildings in this
case, extending over several lots, for the purpose of enjoy-
ment by the owner, became entire, and virtually obliterated
the lines separating them. The three lots occupied by the
large machine shop were not capable of division without great
1863.] Boyd v. Kooheb.
Syllabus.
injury and loss to the owner. They could only have been
offered as one tract and at one bidding. And so of the other
lots upon which buildings were situated. The sale of the
property in the mode adopted, was an abuse of the process of
the court, and required the sale to be set aside.
The power over its own process, is possessed by all courts.
Such power is a species of equitable jurisdiction, that is
inherent in courts of law, as well as those of equity. This
court has repeatedly held, as between the purchaser and the
original parties to the suit, that a court of law will not hesitate
to exercise the power of setting aside a sale on account of
fraud or irregularity. In this case the purchase was made by
the attorney of record, and who was the beneficial plaintiff in
the case. And he must be held liable for all irregularities in
the sale.
The judgment of the court below is affirmed.
Judgment affirmed.
Jesse 0. Boyb
v.
Jeremiah Kocher.
1. Appeal prom justices — summons. Where an appeal from the judg-
ment of a justice of the peace to the Circuit Court, is perfected according to
the provisions of section 60 of the 59th chapter, Rev. Stat. 1845, by filing
the appeal bond in the office of the justice, no summons is required to
be issued to the appellee ; each party is bound to follow up the appeal.
2. Same— appearance — dismissal. And in such case the appellee may,
without having been served with notice of the appeal, enter his appearance
in the Circuit Court, and upon his motion, the appeal may be dismissed for
want of prosecution.
3. But if an appeal be perfected under section 61 of the same chapter,
by filing the bond in the office of the clerk of the Circuit Court, a summong
must issue to the appellee ; in that case, the appellant using proper dili
gence in procuring process, the appellee, if not served with the process,
would have no right, by entering his appearance, to have the appeal dis-
missed for want of prosecution. 19 111. 53.
Boyd v. Kocher. [April T.
Statement of the case.
4. Same — summons—diligence. When it is necessary that the appellee
have notice, the appealing party should use proper diligence in procuring
the process, or incase of his omission of that duty, the appellee may, with-
out having been served with summons, by entering his appearance in the
Circuit Court, hold the same position he would if duly served.*
Writ of Error to the Circuit Court of Lee county ; the
Hon. John Y. Eustace, Judge, presiding.
This cause was originally brought before a justice of the
peace in Lee county, by Kocher against Boyd. A trial being
had, the justice rendered a judgment against Boyd, the defend-
ant below, from which he took an appeal to the Circuit Court
of Lee county. The appeal bond given by Boyd, was filed
in the office of the justice who rendered the judgment.
The judgment was rendered by the justice on the 24th day
of March, 1860 ; the appeal bond was hied with the justice
on the 28th day of the same month ; the justice certified a
transcript of the proceedings before him on April 7, 1860,
and lodged the same in the office of the clerk of the Circuit
Court, on the 8th day of May, 1860. The clerk docketed the
appeal on the 14th day of May, 1860, that being the 8th day
of the term of the said Circuit Court, then being held.
Afterwards, on the same day, the appellee, Kocher, without
there having been any summons issued upon the appeal,
entered his appearance in the Circuit Court, and upon his
motion, the appeal was dismissed for want of prosecution,
and procedendo awarded. Boyd thereupon sued out this writ
of error ; and questions the judgment of the Circuit Court, in
dismissing the appeal.
1. Because no summons was issued to bring the appellee
into that court to receive its judgment ;
2. Because, therefore, the appellee below, Kocher, was
not in such position that he could have been forced to trial ;
and
* Note by Reporter. The act of February 22, 1861, (Acts 1861, p. 15,) provides " that
in all cases of appeals from justices of the peace, perfected ten days before the
commencement of the term in appellate court, the appearance of the appellee may
be entered in writing, and be filed among the papers in the case ; and if such ap-
pearance is so entered ten days before the commencement of the term, the case shall
Btand for trial at said term."
1863.] Boyd v. Kocher. 297
Opinion of the Court.
3. He insists that the Circuit Court erred in dismissing
the appeal on the same day the suit was docketed, without
the cause being called in its order for trial.
Messrs. Gray, Avery & JBushnell, for the plaintiff in
error, contended that the appeal from the justice should not
have been dismissed for want of prosecution, upon the
appellee's entering his appearance in the Circuit Court,
because he had not been served with process from that court,
nor was the transcript of the proceedings before the justice,
filed, nor the appeal docketed ten days prior to the first day
of the term. Citing Hooper and Hay v. Smith, 19 111. 53.
Messrs. Edsall, DeWolf & Pine^ey, for the defendant
in error, insisted that the appeal was taken and perfected pur-
suant to the provisions of Sec. 60 of Ch. 59, Bev. Stat. 1845,
(Scates' Comp. 708), and therefore it was not necessary that
any summons should have issued to the appellee from the
Circuit Court. In such case, each party is bound to take
notice of the appeal, and follow it up, the same as in cases of
appeal from the Circuit Court to the Supreme Court. Citing
Wells v. Hicks, 27 111. 345.
Mr. Justice Breese delivered the opinion of the Court.
This record shows a case originally brought before a justice
of the peace, and taken by appeal to the Circuit Court, under
section 60, chapter 59, R. S. That section is as follows : " The
party desiring such appeal may tile his bond in the office of
the justice who shall have rendered the judgment: such bond
to be approved by such justice, whose duty it shall be to
suspend all proceedings in the case ; and if execution shall
have been issued, he shall recall the same; and who shall,
within twenty days after receiving and approving of the
appeal bond, file the same in the office of the clerk of the
Circuit Court, together with all the papers and transcripts of
the judgment he had given, with a certificate, under his hand,
that the said transcript and papers contain a full and perfect
38— 31st III.
298 Rowley v. James. [April T\
Syllabus.
statement of all the proceedings before him." Scates' Comp.
708.
It is apparent from this section when an appeal is perfected
before a justice of the peace, no summons is necessary to
either party. The party appealing is bound to follow up the
appeal which he has himself taken, and so is the appellee, as
in an appeal taken from the Circuit Court to this court.
Had the appeal been taken under section sixty-one, a sum-
mons' would have been necessary, and the case might then be
likened to the case of Hooper v. Smith, 19 111. 53.
[f it was necessary to summon the appellee to the Circuit
Court, it was a duty the plaintiff here should have performed,
by procuring the necessary process. He did not do so, he took
no steps to bring the party into court, and he should not be
permitted to derive an advantage from his own omission of
duty, granting that such was his duty.
In cases brought to the Circuit Court under section sixty,
the parties must follow up their appeal, in the same manner
as in appeals from the Circuit to the Supreme Court. The
plaintiff in error not having so done, his appeal was properly
dismissed. The judgment is affirmed.
Judgment affirmed.
Curtis M. Rowley
v.
Geokge James.
1. Mechanics' lien — decree as to time of payment. A decree enforcing
a mechanics' lien should fix a reasonable time within which the money is
required to be paid ; and in default of payment within the time, decree a
sale of the premises, or a sufficient portion to satisfy the amount for which
the decree is rendered.
2. Same — requisite to constitute — pleadings and proofs. Petitioners for
the benefit of a mechanics' lien must show, in their pleading, a time
within which the contract was to be performed by the agreement, and the
time when the money was to be paid, as limited by the act, and on the
hearing, these allegations must be proved.
1863.] Rowley v. James.
Statement of the case.
8. Same — upon implied contracts. It seems a mechanics' lien cannot
arise upon an implied contract *
Writ of Error to the Circuit Court of Lake county;
the Hon. George Manierre, Judge, presiding.
This was a proceeding commenced in the Circuit Court, on
the 9th day of October, 1856, by George James against E. G.
Phelps and Curtis M. Rowley, to enforce a mechanics' lien.
The petition set forth that in the month of May, 1856, the
petitioner, James, was engaged in the business of painting at
the town of Waukegan, in Lake county. That during that
month he entered into a contract at Waukegan, with Phelps,
then of the same place, by the terms of which James agreed
to do painting for Phelps upon a house and barn which
Phelps had then erected upon certain described premises in
said town.
That in pursuance of that contract, James did, during the
said month of May, paint for Phelps the house and barn, for
which labor Phelps agreed to pay James the sum of sixty dol-
lars, which was due and remained unpaid. That the time for
the completion of the contract was not extended for a longer
period than three years from the making thereof, nor the time
of payment beyond the period of one year from the completion
thereof.
That about the 1st of July, 1856, Phelps, becoming pecu-
niarily involved, so as to be unable to pay his liabilities, sold
the said premises to Rowley, and that a part of the considera-
tion of the sale was, that Rowley should pay and satisfy all
liens and demands which existed against said buildings,
among which was the lien of James. That Rowley knew of
the contract between Phelps and James, and of the perform-
* Note by the Reporter. The law is different now. By the act of Feb. 18,
3861, it is declared : " That chapter sixty-five of the Revised Statutes of 1845, en-
titled k Liens,' shall be held to include implied as well as expressed contracts, under
which labor or materials are furnished, at the request of any owner of land or
town lot, for erecting or repairing any building or the appurtenances of any build-
ing on such land or town lot, where no price is agreed upon, or no time is express-
ly fixed for the payment of such labor, or for the furnishing of such labor or ma-
terials : Provided, that the work is done or materials furnished within one year
from the commencement of said work or the commencement of furnishing said
materials." Session Acts of 1861, p. 179.
300 Eowley v. James. [April T.
Statement of the case.
ance of the labor by James, both at the time it was being
done, and at the time of the conveyance to him.
The answer of Rowley, sworn to, admitted that in May,
1856, the petitioner was engaged in the business of painter ;
but says he had no knowledge, information or belief, as to
whether he entered into a contract with Phelps, as in his
petition alleged — or whether, in pursuance of the contract,
the petitioner performed labor upon the building in the
petition described, of the value set forth — or whether Phelps
agreed to pay him sixty dollars therefor, as alleged — or
whether there was any sum of money unpaid from Phelps to
the petitioner, as set forth in the petition — or whether there
was any time agreed upon between Phelps and the petitioner
for the completion or payment upon any contract between
them, except as hereinafter stated ; but admits, upon informa-
tion, that the petitioner did perform some labor in painting for
Phelps upon said house and barn, as a day laborer, with-
out any special contract being entered into between Phelps
and him with reference to the labor, as to time, price, or
payment for the same. And he expressly charged the fact
to be, that for the labor performed by the petitioner for
Phelps, it was agreed between them that the petitioner was
to receive his pay in carpenter work of Phelps; and that
when he purchased the interest of Phelps in said premises,
he called upon the petitioner to ascertain if he had any lien
or claimed any upon the premises, and he expressly stated
to the defendant that he had none. That the defendant
offered to provide for the payment of the same in the purchase
of Phelps, if he had any, but said petitioner stated to the
defendant that he had none. Admitted that the interest of
Phelps in said premises, and the transfers and contracts
between Phelps and himself, were correctly stated in the
petition — but he expressly denied that when he purchased
Phelps' interest in said premises, that any portion of the
consideration of the sale was, that he should pay and satisfy
ail liens and demands which existed^ against the buildings
upon said lot, or the lien of said petitioner, or any lien. And
says he never had any knowledge of the pretended lien of
said petitioner, or any other person.
1863.] Bowley v. James. 301
Statement of the case.
That he was informed and believed, and so charged the
fact to be, that the pretended lien of the petitioner was wholly
fictitious and fraudulent, and prayed to be hence discharged,
with his costs.
Upon the trial below, it appeared from the evidence of
Horatio James, that Rowley, at the time he was negotiating
with Phelps for the purchase of the premises in question,
had knowledge of the fact that the petitioner had performed
the labor upon the house and barn, as mentioned in the
petition, which amounted to some sixty or seventy dollars,
and which was understood to be a claim against the property.
He proposed to assume the payment of the claim, deduct-
ing the amount from the purchase-money, but the petitioner
declined to change his security, by accepting Rowley, prefer-
ring to look to Phelps and getting his work from him, as he
had a contract with Phelps by which he was to receive his
pay in that mode.
There were other claims against the house, and Rowley
wanted them all; he did assume a portion of them, and
deducted the amount from the purchase-money, giving his
own due bills therefor; but this claim of James was not
included in that arrangement.
It was admitted by defendant, Rowley, that the work
claimed in this suit was done on the premises described in the
petition, and that if petitioner is entitled to recover therefor
upon this petition and procedure, under the law and the
evidence, he is entitled to a lien on the premises.
The defendant, Phelps, did not appear, and the petition
was taken for confessed against him.
The court below entered a decree as follows :
" It is therefore ordered and decreed by the court, that the
said petitioner have and obtain of said defendants the said
sum of sixty dollars, for his damages assessed, with his costs,
and that the same be and they are hereby adjudged a lien
upon the premises mentioned in said petition, to wit : Lot "No.
10 in Block 11, in original town of Little Fort, (now Wauke-
gan), in the county of Lake and State of Illinois, and that he
have execution therefor; and it is further ordered, that a
302 Rowley v. James. [April T.
Briefs of Counsel.
special execution for a sale of the premises be issued, to
satisfy the said damages and costs."
Thereupon the defendant, Rowley, sued out this writ of
error.
The following is the assignment of errors :
1. The court erred in deciding the petitioner entitled to a
lien, and in rendering a decree for the complainant. The
decree is against law.
2. In awarding execution and decreeing a sale of the
premises, and not allowing or fixing any time for the payment
of the money decreed to be paid before the sale. By the
terms of this decree, execution might have been issued on
adjournment of court, and the premises advertised and sold
immediately.
3. The petitioner by his petition does not bring himself
within the statute upon which the same is predicated.
No time is alleged within which the contract or labor was
to be performed, nor when the money therefor was to be
paid.
Both petition and proof show that no time was specified by
contract within which it should be performed.
No contract of any kind is alleged.
None is proved.
The petition is brought and rests upon an implied contract.
4. The proof is insufficient to sustain the allegations of the
petition.
Furthermore, there is a fatal variance between the proof
and allegations.
Mr. H. P. Smith, for the plaintiff in error.
The act of 1845 governs the proceedings in the case.
It was improper to decree a sale of the premises, and award
execution, without allowing or fixing any time for the pay-
ment of the money decreed to be paid, before sale. By the
terms of this decree, execution might have been issued on the
adjournment of court, and the premises advertised and sold
immediately. Glaycomb v. Cecil, 27 111. 500 ; Link v. Archi-
tectural Iron Works, 24 111. 551.
1863.] Gal. & Chi. Un. R. K. Co. v. Griffin. 303
Syllabus.
Both the petition and proof show that no time was specified
by contract within which the labor was to be performed, nor
when the money therefor was to be paid. Brady v. Ander-
son, 24 111. 112; Phillips v. Stone, 25 111. 80; Columbus M.
c& M. Co. v. Downer, ib. 169 ; Scott v. Keeling, ib. 358 ;
Cook et al. v. Heald et al., 21 111. 425 ; Sa?ne v. Vreeland, ib.
431; Same v. Rofinot, ib. 437; Senior v. Brebnor, 22 111.
252 ; McClerhin v. Lagon, 23 111. 79 ; Moser v. J/a# <^ al.,
24 111. 198.
The allegations contained in the petition are not sustained
by the proof. Stein v. Shultz, 23 111. 646.
Mr. E. P. Ferry, for defendant in error.
Mr. Chief Justice Caton delivered the opinion of the Court :
All of the errors are well assigned in this case. Neither
the petition, nor the proof, makes out a lien under the statute
of 1845, which controls this contract. No time was specified
for the completion of the work, or the payment of the money.
Indeed, the petition is upon an implied contract. We have so
often decided these questions that their further consideration
is unnecessary.
The decree is reversed, and the suit remanded.
Decree reversed.
Galena and Chicago Union Railroad Company
Thomas Griffin.
1. Railroads— ^ fencing their track. A railroad company are not re.
quired to fence their track upon their depot grounds in a town.
2. Railroads — care — negligence — running over stock. In this case, a
colt ran upon the road before the locomotive, and was run over and killed.
The train, at the time, was running- through a town, upon the depot
304 Gal. & Cm. TJn. E. E. Co. v. Griffin. [April T.
Statement of the case.
grounds of the company, at the usual rate of speed. The bell upon the
locomotive was ringing. The colt ran upon the road from behind a build-
ing, so near the road that it could not be seen by the engineer in time to
check the train ; but as soon as he saw it he blew the whistle, and the
brakes were put down. The track, at that point, was not fenced. Held,
that the company was guilty of no negligence.
Appeal from the Circuit Court of the county of Whiteside ;
the Hon. W. W. Hbaton, Judge, presiding.
This was an action, originally commenced before a justice
of the peace in the county of Whiteside, by Thomas Griffin,
against the Galena and Chicago Union Eailroad Company,
to recover damages for running a train upon, and killing, a
colt belonging to the plaintiff. The justice rendered a judg-
ment against the company, who took an appeal therefrom to
the Circuit Court.
It appeared from the evidence upon the trial in the Circuit
Court, that while a passenger train was approaching the depot
building of the company, at its usual rate of speed, running
at the rate of about fifteen miles an hour, and on the depot
grounds of the company, within the town of Morrison, which
is an incorporated town, the colt of the plaintiff ran from
behind a building near the track, and in attempting to cross
the road in advance of the train, was struck by the locomotive,
and killed. The colt was running at large at the time of the
accident.
The train was in such position at the time the colt started
in the direction of the road, that the engineer could net see it ;
as soon as he did see it, however, he have the usual signal by
the whistle to put down the brakes for the purpose of stopping
the train. It was impossible, from the time the engineer first
saw the colt, to have checked the speed of the train sufficiently
to have enabled the colt to cross the road in safety.
The track crossed two streets in the town ; the accident
occurred about sixty feet east of the first crossing, and about
one hundred and fifty feet west of the second crossing, the
train running east at the time. The bell on the engine was
rung at least eighty rods west of the west crossing, and until
1863.] Gal. & Cm. Un. E. E. Co. v. Griffin. 305
Opinion of the Court.
the train reached the station. The depot grounds of the
company in the town were not fenced. The colt was proven
to be of the value of fifty dollars at the time it was killed,
and the jury returned a verdict in favor of the plaintiff for
that amount.
The defendants entered their motion for a new trial, which
the court below overruled ; and judgment was entered in
accordance with the verdict, from which the defeodants took
this appeal. The assignment of errors presents two questions :
first, whether it was the duty of the company to have fenced
their road at the place where the accident occurred; and
second, whether the company were guilty of negligence, so
as to make them liable to the plaintiff.
Mr. Elliott Anthony, for the appellant.
Messrs. Johnson & Teller, for the appellee.
Mr. Justice Walker delivered the opinion of the Court :
In this case a motion for a new trial was entered, which
was overruled by the court. It is insisted by appellants, that
appellee wholly failed, on the trial below, to show negligence
on the part of the company. It appears from the evidence,
that the colt was killed on the depot grounds, where they are
not required to fence their track. It ran upon the road, from
behind a building so near the road that it could not be seen
by the engineer in time to check the train. Before it could
be seen, it was within a few feet of the engine. It also
appears, that the train was running at its usual speed.
One or two of appellee's witnesses testify, that they did not
hear the ringing of the bell. But the engineer and fireman
both swear positively, that it was ringing at the time the
accident occurred. The fireman testifies, that he rung the
bell at the time, as he always did at road crossings, and
had for at least eighty rods. This was all that the agents of
the company could do to prevent the accident. Instead of
the evidence showing negligence, it seems to establish the
39— 31st III.
306 Archer et al. v. Claflin et al. [April T.
Syllabus.
highest degree of care that could have been exercised under
the circumstances. We can perceive no omission of duty on
their part. The finding of the jury was, we think, manifestly
against the evidence, and the court below should have granted
a new trial.
The judgment must be reversed, and the cause remanded.
Judgment reversed.
George R. Archer et dL
v.
William Claflin et al.
1. Pleading — practice — when a dilatory defense should he interposed.
Where the defense in an action is of a dilatory character, it should be inter-
posed at the first term, if the declaration is filed ten da}-s before such term.
2. Same — when plea in abatement too late after a continuance. After a
general imparlance, which is nothing more than a continuance, a plea in
abatement, for matter which existed before the continuance, conies too late.
3. Same — objection to affidavit for attachment should precede a motion
for continuance. So, an objection to an affidavit, upon which an attachment
is sued out, for its insufficiency, is of a dilatory character, and should pre-
cede a motion, on the part of the defendant, to continue the cause. A mo-
tion to dismiss for such cause, should be the very first made. It is too late
to make the objection, for the first time, upon writ of error.
4. Same — waiver — plea in abatement waives objection to affidavit for at-
tachment. And a plea in abatement traversing such affidavit, is a waiver of
any objection to the affidavit on the ground of insufficiency. And it will
make no difference that the plea is afterwards stricken from the files, — that
fact cannot affect the rules prescribed for the order of pleading.
5. Variance — time to take advantage of it. If there be a variance be-
tween a note as described in the declaration, and the one actually intended
to be sued upon, it cannot be taken advantage of after a judgment is en-
tered on a default of a plea.
6. Practice — rule to plead "to the action" — its effect. A rule "tc
plead to the action," is equivalent to a rule to plead to the merits. The
tiling of a plea in abatement is not a compliance with such a rule.
7. Same — striking plea from files. Where a plea in abatement was
filed, after a rule to plead " to the action," and after the time for pleading
in abatement, it was held proper to strike it from the files.
1863.] Archer et at. v. Claflin et at. 307
Syllabus.
8. Same — leave to plead in abatement after amendment. Where the affi-
davit upon which an attachment was sued out, is allowed to be amended
after the time has passed for pleading in abatement, and the amendment
introduces new matter, it is proper to allow the defendant to plead in
abatement to such new matter.
9. Pleading — evidence — variance. In declaring upon a promissory
note, or other instrument in writing, it is sufficient to describe the instru-
ment according to its legal effect. So, in declaring upon a promissory note,
payable " without defalcation or discount," if those words be omitted in
describing the note, there will be no variance.
10. If the pleader, however, professes to give the legal effect of the instru-
ment, and the legal operation is different from that which appears by his
statement, it will be a fatal variance.
11. In declaring upon a promissory note, bearing date on the 17th oi
April, 1857, and payable six months after date, the note was described as
being " payable six months after the date thereof, to wit, on the. 17th day of
October, 1857." The averment as to the time at which the note was paya-
ble, (six months after date) was in the terms of the note ; and making it
more specific, by stating the day on which it fell due, was mere surplusage,
and if incorrect in this particular, it would not vitiate.
12. Affidavit for attachment — its requisites. An affidavit upon
which an attachment is to be sued out, which states that the affiant is
informed and verily believes the debtor is about to depart from the State,
with the intention of removing his effects from the same, to the injury, etc.,
is not sufficient ; the facts should be set forth by positive averment.
13. Promissory notes — their constituent parts. All promissory notes,
under our statute, are negotiable. They all purport, on their face, to be
payable without defalcation or discount. The insertion, therefore, of those
words in the body of the notes, would give them no other meaning or legal
effect than the statute gives them.
14. And if a note be made payable " without defalcation or discount,"
those words being expressed in the body of the instrument, it would still
be subject to any claims to discount the defendant might be able to sub-
stantiate.
15. Under our statute, this would be a negotiable promissory note : " I
promise to pay A. B. ten dollars," or any other sum of money, or article of
personal property, and signed by the maker. Such a note has all the con-
stituents of negotiable paper, of the highest character. It need not be ex-
pressed for value received, nor payable to order, to make it negotiable ;
nor need it have a date, as delivery gives it effect, and no time being
specified, it is payable on demand.
Writ of Error to the Circuit Court of Henderson county ;
the Hon. John S. Thompson, Judge, presiding.
308 Aechek et al. v. Claflin et aL [April T.
Briefs of Counsel.
This was an action of assumpsit instituted in the Circuit
Court by the defendants in error against George R. Archer
and Marcellus Archer, the plaintiffs in error.
The suit was commenced by summons against George R.
Archer, and by writ of attachment against Marcellus Archer.
The affidavit upon which the writ of attachment was sued out,
was made by the attorney of the plaintiffs below, and after
setting forth the indebtedness with sufficient certainty, con-
cluded as follows: " And that the said Marcellus Archer, as
your affiant is informed and verily believes, is about to depart
from said State of Illinois, with the intention of removing his
effects from the same, to the injury of his said creditors of
eight hundred dollars, and further saith not."
The other proceeding in the cause are sufficiently set forth
in the opinion of the court.
Messrs. Wead & Powell, for the plaintiffs in error, relied
upon the following points and authorities :
1. The affidavits, both original and amended, were clearly
insufficient. They were founded upon information and be-
lief which will not do. Dyer v. Flint, 21 111. 80.
2. The final judgment was rendered by default. If defend-
ants were out of court then, they may now take advantage of
any error in the proceedings, as was done in the case of Dyer
v. Flint, 21 111. 80.
3. There was a motion filed below to dismiss for want of
sufficient affidavit, which was overruled, and plaintiff had leave
to amend. He did amend, but his amended affidavit was no
better than the original. The record therefore shows that the
court erred in rendering judgment without a sufficient affida-
vit. It had no jurisdiction.
4. The rule on defendants to plead was made on the 29th
November, and the next day the plea was filed. It was also
agreed by counsel that defendant might plead on that day.
But it is urged the plea was in abatement To this we answer,
there was no stipulation as to the kind of plea which should
be filed, and there was no rule of court requiring the plea to
be filed sooner.
1863.] Archer et al. v. Claflin et al. 309
Briefs of Counsel.
In fact, the plaintiff on the next day (Dec. 1st) filed his
amended affidavit. To this new affidavit defendant had a
right to plead in abatement, because, as to that, he was guilty
of no laches. The plea stood on the record as an answer to
that portion of the affidavit which asserted that Archer was
about to remove his property, to the injury of his creditors.
The plea was rightfully on the files, it was in apt time, and
the court had no right to set it aside. Nor could the court
render judgment by default, without first making an order
for the defendants to plead anew. A rule should have been
entered for a new plea, and if not forthcoming, then perhaps
a judgment might have been rendered against them. Ten
days ought to have been allowed defendants, after the filing
of the new affidavit, to plead thereto.
5. There was a fatal variance between the note and dec-
laration. The words " without defalcation or discount" are
omitted, and the note is described in the declaration as being
due on the 17th, whereas it was due on the 16th.
But even if plea was not filed in time, plaintiffs below
waived their right to object by taking other steps in the cause
before making the motion to strike the plea from the files. 1
Scam. 250 ; 2 Scam. 463; 5 Gilm. 461.
Mr. M. Williamson, for the defendants in error, filed a
written argument, in which he presented the following points :
Objections to the insufficiency of an affidavit upon which
an attachment is sued out, being of a dilatory character, must
be taken at the earliest opportunity after appearance ; and if
not then taken, the objection is waived, and the case will
rtand for trial on its merits, or a default may be entered.
A plea in abatement traversing such affidavit, is a waiver
of its insufficiency.
"Where a defendant in the court below moves for a continu
ance of the cause, and obtains leave to file an affidavit in
support of such motion, he thereby enters a full appearance,
and waives all dilatory defenses.
If a defendant take any step in a cause, as filing special
310 Archer et al. v. Claflin et al. [April T.
Briefs of Counsel.
bail, putting in a demurrer, or plea, or taking a rule for
security for costs, and the like, this is such an appearance as
cures all errors and defects in process, and the defendant can
then only answer to the merits. Strange, 155 ; 3 T. R. 611 ;
3 Ohio K. 272 ; Wright E. 762 ; 7 Mass. R. 461.
An agreement entered into between the parties after the
proper time for pleading in abatement had passed, that the
defendant should have "further time to plead," would be
presumed to have reference to such plea as would at that time
be proper — a plea to the merits.
And should a plea in abatement be filed after such an
agreement, a motion to strike such plea from the files, would
not authorize a motion on behalf of the defendant, to dismiss
the suit for want of a sufficient affidavit on which the attach-
ment was sued out.
The Circuit Court has power to allow such an affidavit to be
amended.
There is no variance betweei the note as described in the
declaration, and that offered in evidence, merely because the
words " without defalcation or discount," as used in the note,
were not set forth in the declaration. Those words are inop-
erative, and it was enough to describe the note according to
its legal effect, which was done. 1 Serg. & Rawle, 185; 9
ib. 197; 14 ib. 133; 2 Robinson's Prac. 170; Owen v. Bar-
mim, 2 Gilm. 462.
Nor is there any variance as to the time when the note sued
upon, is described to have matured. The note was dated on
the 17th of April, 1857, and was payable at six months after
date ; it was described in the declaration as being payable six
months after date, " to wit, on the 17th day of October,
1857." The note was thus properly described as being pay-
able six months after date, and the words, " to wit, on the
17th day of October, 1857," should be rejected as surplusage.
But the note was properly described as maturing on the 17th
of October; it was payable six months afterdate; in com-
puting the time upon such a note, the day of its date is ex-
cluded ; then it became payable on the 17th of October, and
not on the 16th of that month, as is contended See 8 Mass,
1863.] Archer et al. v. Claflin et al. 311
Opinion of the Court.
E. 435 ; 3 N. Hamp. E. 14; 9 ib. 304; 3 McLean E. 538'; 2
Conn. 69 ; 31 Maine E. 580 ; 2 Penn. State B. 495 ; 1 Kobin
son's Prac. 424, and cases cited.
Mr. Justice Breese delivered the opinion of the Court:
This was an action of assumpsit commenced by attachment
in the Henderson Circuit Court to the April term, 1859, by
the defendants in error against the plaintiffs in error, and
judgment rendered for the defendants in error. The affidavit
for the attachment, and the attachment bond, were filed on the
27th January, 1859, and the writ of attachment issued the
same day against Marcellus Archer alone, and was levied on
personal property on the first day of February, 1859, and per-
sonal service was had on Marcellus and George E. Archer on
the 2nd of February, 1859. The declaration was filed on the
27th January, 1859, counting upon a promissory note bearing
date April 17, 1857, and payable six months after the date
thereof, " to wit, on the 17th day of October, 1857," to the
plaintiffs or order, for the sum of three hundred and ninety-
two dollars and forty-seven cents, with interest from maturity,
" to wit, from the 17th day of October, 1857," at the rate of
ten per cent, per annum for value received.
At the May term, 1859, the parties appeared by their attor-
neys, and the defendants interposed a motion to dismiss the
attachment, 1, for want of a sufficient bond, and, 2, for
want of a sufficient affidavit. Whereupon the plaintiffs entered
their motion for leave to file a new bond, which motion was
allowed, and the defendants' motion overruled. On the next
day the plaintiff filed an amended bond. Four days there-
after, the parties by their attorneys came, and the defendants
moved for a continuance of the cause ; and on due delibera-
tion, it was ordered by the court, that the defendants have
leave to file affidavit by the next morning. On the next
morning, the parties by their attorneys came, and by agree-
ment, the cause was continued until the next term at the
costs of defendants.
At the next term, on the 29th of November, 1859, the
312 Archer et ah v. Claflin et al. [April T.
Opinion of the Court.
parties by their attorneys came, and on motion, a rule was
taken against the defendants to plead " to the action " by the
next morning.
On the next morning, the defendants filed a plea in abate-
ment, denying the fact stated in the affidavit, that Marcellus
Archer was about to depart the State with the intention
of removing his effects from the same. On the next day, the
parties by their attorneys came, and on motion of defendants,
leave was given them to amend their plea, " and also to
amend the affidavit by agreement."
Four days thereafter, the plaintiffs entered their motion to
strike pleas in abatement from the files, which motion, four
days thereafter, was allowed by the court.
The defendants failed to plead further, and " being called,
came not, nor any person for them, to defend the suit, but made
default."
It was thereupon considered by the court that the plaintiffs
have and recover their damages, which the clerk was ordered
to assess, who reported the damages as assessed, to be four
hundred and eighty dollars and seventy-two cents, for which
judgment was entered, together with the costs.
From this judgment the defendants prayed an appeal, and
obtained leave to file their bill of exceptions, and appeal bond
in sixty days.
On the 26th January, 1860, a bill of exceptions was signed,
stating as above, the steps in the cause, and setting out the
amended affidavit, which in no material respect, differed
from the affidavit first filed.
On the hearing of the motion to strike the plea in abate-
ment from the files, the bill of exception states that the de-
fendants proved by the plaintiffs' counsel, that he, the counsel,
had, on the 29th November, 1859, agreed with the defendants'
counsel that he should have until the next day to plead, but
he never agreed that defendants might plead in abatement,
and had no notice of the kind of plea defendants intended to
file. That at the time of the allowance of the motion, the
defendants in open court objected, and objected to rendering
final judgment in the cause, and excepted to same. Upon ren-
1863.] Archer et al. v. Claflin et at, 313
Opinion of the Court.
dering final judgment, the plaintiffs introduced the note in evi-
dence on which the suit was brought, and which is as follows :
"$392-£ft. Saint Louis, April 17th, 1857. Six months
after date, we, the subscribers of the town of Terre Haute,
county of Henderson, and State of Illinois, promise to pay to
Claflin, Allen & Emmerson or order, three hundred ninety-two
dollars and forty-seven cents, for value received, negotiable
and payable without defalcation or discount, with interest
from maturity, at the rate of ten per cent, per annum. G. E-.
Archer & Bro's." And the defendant repeated his objections
to striking the plea from the files, and rendering judgment in
chief.
Omitting the credits indorsed on the note, the above is
the substance of the bill of exceptions.
The errors assigned are : 1, striking the plea in abatement
from the files; 2, rendering a judgment upon the note ; 3, in
not dismissing the attachment for want of a proper affidavit.
The appellants were personally served with process, and
appeared to the action at the May term, 1859, and then and
there entered a motion for a continuance of the cause to the
next term, to which term the cause was continued.
At the next term, a rule was taken on the defendants " to
plead to the action." Under our practice act, a party is
bound to plead at the first term if the declaration is filed ten
days before the term, unless cause is shown for delay. The
declaration in this cause was filed ten days before the first
day of the term, and if the defendants' defense was of a dila-
tory character, not going to the merits, it was their duty to
have interposed it, at the first term.
Such pleas are not favored, as they tend to delay a settle-
ment of the controversy according to its merits. Such being
the tendency, the utmost strictness is required, and such a
plea must be put in at the earliest opportunity afforded the
party, so that there may be no unnecessary delay. After a
general imparlance, which is nothing more than a continuance,
all the books hold, a plea in abatement, for matter which
existed before the continuance, comes too late. 1 Ch. PL
40— 31bt III.
314: Archer et al. v. Claflin et al. [April T,
Opinion of the Court.
455, and the cases cited in notes. Gaines v. Conn's Heirs, 2
Dana, 231. An appearance had been entered and a motion
to dismiss the attachment had been made by the defendants.
It was therefore, for these reasons, not in apt time, not at the
earliest practicable moment. Holloway et al. v. Freeman, 22
111. 202 ; Roberts v. Thompson, 28 111. 79.
If such a plea be pleaded after a general imparlance, or
after a continuance, the plaintiff may either sign judgment or
apply to the court, by motion, to set it aside. 1 Tidd's
Practice, 463.
The matter of this plea in abatement existed and was
known to the defendants, at the first term, when it should
have been pleaded. At the next term, they were under a
rule to plead to the action, which is equivalent to a rule to
plead to the merits. The plea in abatement did not com-
ply with this rule, and was properly stricken from the
files. The record shows no agreement that defendants might
plead in abatement, but they were required to plead to the
action.
If the amended affidavit had introduced new matter, to
which a plea in abatement might have been pleaded, then it
would have been proper to allow the defendants to plead in
abatement to such new matter, but the amended affidavit
introduced no new matter, and therefore, the plea was not in
time.
The second error assigned is predicated, doubtless, upon a
supposed variance between the note declared on, and the one
set out in the bill of exceptions. The note in the bill of ex-
ceptions contains these words : " without defalcation or dis-
count," and the declaration upon the note omits them, and
this is urged as a variance.
It is a rule in declaring upon a promissory note or other
instrument in writing, that the instrument must be described
substantially as it is, or according to its legal effect. The
words " without defalcation or discount," do not add to, or
subtract from the legal effect of the note. Under the statute,
it was negotiable without those words, and if it contained
1863.] Archer et al. v. Claflin et al. 315
Opinion of the Court.
them, it would be subject to any claims to discount the de-
fendants might be able to substantiate. All promissory notes
under our statute are negotiable, and have the same legal
effect without those words as with them. They all purport,
on their face, to be payable without defalcation or discount.
The insertion, therefore, of those words in the body of the
notes, would give them no other meaning or legal effect than
the statute gives them.
The legal effect of this note, not being altered by those
words, the omission of them in the declaration was no variance.
It was the same note in legal effect. It is never necessary
to declare in the precise words of a written promise ; it is
allowable, and often necessary, to declare according to their
legal effect and import. If the pleader, however, professes to
give the legal effect of the instrument, and the legal operation
is different from that which appears by his statement, it will
be a fatal variance. 1 Ch. PL 305-6.
Testing this case by this rule, there is no variance, for the
legal effect of the note is correctly stated. Under our statute
this would be a negotiable promissory note : " I promise to
pay A. B. ten dollars," or any other sum of money or article
>i personal property, and signed by the maker. Such a note
has all the constituents of negotiable paper of the highest
character. It need not be expressed to be for value received,
nor payable to order, to make it negotiable, nor need it have
a date, as delivery gives it effect, and no time being speci-
fied, it is payable on demand. /Stewart et al. v. Smith, 28 111.
397.
But if there was a variance, the appellants cannot take ad-
vantage of it, as the judgment was taken on their default of
a plea. There was no trial had, nothing but an inquest of
damages by the clerk ; and when the note was before him on
which he assessed the damages, it was not objected by the
appellants that there was any variance, nor was any special
objection of any kind raised on the assessment by the appel-
lants.
It is objected by the appellants, that the affidavit of the
316 Archer el al. v. Claflin et al. [April T,
Opinion of the Court.
attaching creditors was defective, in not alleging, in positive
terms, the intention of the debtor to leave the State, and
reference is made to the case of Dyer v. Flint, 20 111. 80.
In that case, the attachment was sued out against a non-resi-
dent debtor, and the fact of non-residence was positively stated,
but the indebtedness was not. The statute requires a positive
averment, both of non-residence, a fact in the knowledge of
the attaching creditor, and a like averment of indebtedness,
a fact likewise within his knowledge.
In this case, the attachment, though not against a non-
resident debtor, was defective in failing to aver, in positive
terms, the design to depart the State with the intention of
taking their property out of the State to the injury of their
creditors, in the terms of the statute. These positive aver-
ments seem to be made necessary by the statute, and affidavits
ought, and usually do, contain them. White v. Wilson, 5
Gilm. 21 ; Walker v. Welch, 13 111. G74.
This motion to dismiss for defects in the affidavit, was of a
dilatory character, not going to the merits of the action, and
should have preceded the motion to continue, for if the affi-
davit was defective, and not amendable, the motion put an
end to the case, and no continuance was necessary. It was
the very first motion that should have been, but was not, first
made. It is now too late to object to its sufficiency. Here
the parties appeared, and by their appearance became subject
to all the rules and order of pleading ; in Dyer v. Flint, the
record did not show any appearance. A party making a full
appearance, as in this case, is bound to make an objection
which would dispose of the case, at the earliest practicable
moment, and take notice of the order of pleading. Here it
was not done. Besides, the defendants pleaded to the affi-
davit, and that was a waiver of the objection. It makes no
difference that the plea was stricken from the files — that
fact cannot affect the rules prescribed for the due order of
pleading.
We perceive no defect in the declaration ; the averment of
the time at which the note was payable, was in the terms of
1863.] Archer et al. v. Claflin et al. 31'
Statement of the case.
the note and making* it more specific, was mere surplusage,
and if incorrect, could not vitiate. The note was payable six
months after date, and so alleged in the declaration.
Perceiving no error in the record, the judgment must h«
affirmed.
Judgment affirmed
George R. Archer et al.
v.
William Claflin et al.
Pleading and Evidence — variance. Where a declaration upon a
promissory note describes the instrument sued upon as bearing a particular
date, corresponding with the date of the original note offered in evidence,
there is no variance, although that which was filed with the declaration as
a copy, purported to be of a different date.
Writ of Error to the Circuit Court of Henderson county ;
the Hon. John S. Thompson, Judge, presiding.
Claflin, Allen and Emmerson, the defendants in error, insti-
tuted an action of assumpsit in the court below, against the
plaintiffs in error, declaring specially upon a promissory note.
The principal features of the case, and the questions of law
involved, are the same as in the preceding case ; it is there-
fore unnecessary to repeat them here.
In this case, however, the question was presented whether
there was not a variance between the note as described in the
declaration and that upon which the damages were assessed.
The declaration described the note sued upon as bearing
date on the 3rd of November, 1856 ; the copy, or that which
was filed with the declaration as a copy of the note sued upon,
bore date as of the year 1860. But the original note which
was offered in evidence upon the assessment of damages, cor-
responded in date with that described in the declaration.
Judgment was entered against the defendants "below, upon
which they prosecute this writ of error.
318 Billings v. Laffeett. [April T.
Syllabus.
Messrs. Wead & Powell, for the plaintiffs in error.
Mr. M. Williamson, for the defendants in error.
Mr. Justice Breese delivered the opinion of the Court :
This case does not differ, in any essential particulars, from
the preceding case. The objection, that there was a variance
between the note described in the declaration, and the one on
which the damages were assessed, has no foundation in fact.
The copy of the note, it is true, bore the date of 1860, but
the note itself was dated in 1856, and was so described in the
declaration. And on such note the damages were assessed by
the clerk.
There is no error that we can discover in this record. The
judgment must be affirmed.
Judgment affirmed.
William Billings
v.
William Lafferty.
1. Pleading — averment. In an action of trespass on the case against a
clerk of the Circuit Court for approving a bond given upon an appeal from
the judgment of a justice of the peace, which provides an insufficient pen-
alty, the averment that he did so, " contriving, and wrongfully and unj ustly
intending to injure the plaintiff, and to deprive him of the benefit of" a
judgment which he had obtained on the appeal, is a sufficient allegation
that the act was done willfully and maliciously.
2. Case — when it will lie. Semble, that an action of trespass on the case
will lie against the clerk of a Circuit Court, who wrongfully approves an
appeal bond which provides a penalty less than is required by law.
3. Appeal bond — penalty — forcible detainer. Semble, an appeal bond
given upon an appeal to the Circuit Court, taken by the defendant in an
action for forcible detainer, should be in a penalty sufficient to secure the
payment, not only of the costs of the suit, but also the rents becoming du«
from the commencement of the suit until the final determination thereof.
1803.] Billings v. .Lafferty. 319
Statement of the case.
Writ of Error to the Circuit Court of Warren county.
Billings instituted his action of trespass on the case in the
court below, against Lafferty, setting forth in his declaration
that the plaintiff had previously thereto obtained a judgment
before a justice of the peace, against one Thorn, in an action
of forcible detainer, for the possession of certain described
premises ; and that a writ of restitution was therein awarded.
That Thorn afterwards, upon taking an appeal from such
judgment, to the Circuit Court of Warren county, executed a
bond with certain sureties, in the penalty of forty dollars, con-
ditioned as the law requires in such cases, which bond was
then presented by Thorn to the defendant, Lafferty, who was
then acting clerk of the said Circuit Court, for his approval
or rejection thereof.
It is averred in the declaration, that the penalty of forty
dollars set forth in such appeal bond was not double the
amount of the judgment and costs in the cause determined
by the justice, as required by the statute, and was not suffi-
cient to indemnify or satisfy the plaintiff in any judgment
which might be rendered in his favor by the Circuit Court,
upon the dismissal or trial of said appeal; and was insuffi-
cient to indemnify or satisfy the plaintiff for the rents accru-
ing to him upon the premises, from the commencement to the
final determination of the suit for forcible detainer.
And, although it was the duty of the defendant, as clerk of
the Circuit Court, to have rejected such insufficient bond;
" Nevertheless, the said defendant, so being clerk as aforesaid,
not regarding his official duty in that behalf, but contriving,
and wrongfully and unjustly intending to injure the said
plaintiff, and deprive him of the benefit of his said judgment
before said justice, and whatever judgment the said Circuit
Court might render in his behalf, and of the means of obtain-
ing satisfaction for whatever judgment might be rendered by
said Circuit Court in his behalf, and the rents becoming due
from the commencement of said suit until the final determina-
tion thereof, as aforesaid, did not, nor would reject the said
320 Billings v. Lajterty. [April T.
Briefs of Counsel.
bond, but, on the contrary, wrongfully and injuriously
approved, accepted and filed the same," etc.
The declaration concludes by setting forth that the Circuit
Court dismissed the appeal taken by Thorn, and entered a
judgment against him for costs, amounting to twenty-five dol-
lars and thirty-one cents, and that the rents which had accrued
from the commencement of the suit before the justice to the
time of the dismissal of the appeal in the Circuit Court,
amounted to two hundred and forty dollars, which amounts
the plaintiff had been unable to make, except the said sum of
forty dollars, the penalty of the bond, by reason of the total
insolvency of Thorn, which existed at the time the bond was
approved, and hitherto, etc.
There was a general demurrer to the declaration ; the court
sustained the demurrer, and the plaintiff abiding by his decla-
ration, final judgment was rendered against him for costs;
and upon that judgment he brings this writ of error.
It is assigned for error, that the court below erred in sus-
taining the demurrer to the declaration.
Mr. A. G. Kiekpatrick, for the plaintiff in error, contended
that the defendant, in approving the bond, acted in a minis-
terial, not a judicial capacity ; that the statute gave him no
discretion as to the amount of the penalty of the bond, requir-
ing it to be in twice the amount of the judgment and costs.
This case is distinguishable from that of an official act of a
public officer, or an act of a ministerial officer, where the law
has invested such officer with a discretion in regard to the act
done.
2. The question of malice or willfulness does not arise
here. Not having rejected the bond, as was his duty under
the law, the defendant is liable to respond in damages for the
injury resulting from his breach of duty, whether the act was
done in good faith or maliciously and willfully. Tracy et al.
v. Swartwout, 10 Peters, 95 ; Briggs v. War dwell, 10 Mass.
356; Tompkins v. Sands, 8 Wend. 462; Vermont K. (2
Tyler,) 177 ; Hardison v. Jordan, Cam. & Nor. (1ST. Car.) 454;
Miller v. Sanderson, 10 Cal. 489 ; 1 Chitty's PI. 389.
1863.] Billings v. Lafferty. 321
Briefs of Counsel.
3. If it be necessary to show willfulness and corruption
on the part of the defendant, the averment in the declaration
that " not regarding his official duty, but contriving, and
wrongfully and unjustly intending to injure said plaintiff, and
deprive him of the benefit of his said judgment," etc., is
sufficient for that purpose. Lush v. Carlin, 4 Scam. 395 ;
JVapper et al. v. Short, 17 111. 120; Flack v. Harrington,
Breese, 165 ; Tompkins v. Sands, 8 Wend. R. 462 ; 1 East,
555 (271) and note (274 and 276) ; 1 Chitty's PL 391.
4. When the declaration is founded on an obligation ot
law unconnected with any contract between the parties, it is
sufficient to state very concisely the circumstances which gave
rise to the defendant's particular duty or liability ; as in actions
against sheriffs, carriers, etc. 1 Chitty's PI. 291, 383.
Mr. George F. Harding, for the defendant in error, insisted
that the act of the clerk in approving a bond which provided
a penalty in less than double the amount of the judgment
from which the appeal was taken, and costs, was not such a
violation of duty as would give the plaintiff a right of action
against him, because the penalty required, is to secure the
payment of the judgment and costs, and that was sufficient
here, the costs being less than the amount of the penalty.
Rev. Stat. 1845, ch. 59, sec. 59.
2. It is not necessary that the appeal bond in the case of
forcible detainer, should provide a penalty in an amount
which will be double the value of the rents which might
accrue during the pendency of the suit.
3. But if it were the duty of the clerk to demand a bond
of sufficient penalty to cover the accruing rents, then he was
vested with a discretion as to the amount, which would con-
stitute the act of approval, a judicial, not a ministerial act.
So no action would lie. People v. Percells, 3 Gilm. 63;
Tompkins v. Sands, 8 Wend. 469.
4. The gist of this action would seem to be in the willful
violation of duty. The general averment of " wrongfully
and unjustly intending " to injure, etc., is not sufficient. These
are general words, and like the words "suspiciously," " duly,"
41— 31st III.
322 Bigelow et al. v. Andress et al. [April T.
Syllabus.
" lawfully," they seldom avail in pleading. 1 Chitty's PL
235. There should be a clear and distinct charge* that the
act was done maliciously and willfully. Saxon v. Castles, 8
Ad. & E. 652; Drewe v. Coulton, 1 East, 563, note b;
Harman v. Tappenden et al., 1 East, 555 ; 11 Johns. 114; 8
Cowen, 185 ; Tompkins v. Sands, 8 Wend. 468.
Mr. Chief Justice Caton delivered the opinion of the
Court :
Admitting that it was necessary for the plaintiff to show in
the declaration that the defendant did the act willfully and
maliciously, in order to maintain the action, we think these
averments amount to that. The language of the declara-
tion is, " contriving, and wrongfully and unjustly intending,
to injure the plaintiff, and to deprive him of the benefit of
his said judgment," etc. Now if this be true, he acted both
maliciously and willfully. If he accepted this bond for the
purpose, wrongfully and unjustly, of depriving the plaintiff
of his rights, this was the very essence of malice. And such
is the substance of this averment. We think the demurrer
should have been overruled. The judgment is reversed, and
the cause remanded, with leave to the defendant to plead.
Judgment reversed, and cause remanded.
John R. Bigelow et al.
v.
Henry W. Andress et al.
1. Lien — garnishment. The service of a garnishee process in a pro
ceeding commenced by attachment, does not create a lien in favor of the
creditor, upon the property or effects of the debtor in the hands of the
garnishee.
2. Chancery — jurisdicton — creditors' bills. A court of equity will not
intervene by way of injunction, or otherwise, in behalf of a simple contract
creditor, upon the ground that his debtor has made a fraudulent transfer of
his property. An equitable attachment is not known to our law.
1863.] Bigelow et al. v. Andress et at. 323
Statement of the case.
3. A party who has simply commenced his suit at law by suing- out an
attachment, and procured a service of garnishee process upon the fraudu-
lent grantee of the debtor, stands in no better position to invoke the aid of
a court of chancery to preserve the property in the hands of the garnishee,
than he would if he had not sued out his attachment; he is still a mere
simple contract creditor.
4. As a general rule, a creditor must first reduce his debt to a judgment
before he can resort to a court of equity for aid in its collection.
If he desires a fraudulent obstruction removed, or to subject an equita-
ble estate, not liable to sale on execution, he must first exhaust his legal
remedies, by obtaining a judgment, and a return of nulla bona, before a
court of equity will afford such relief.
5. Injunction — garnishee. A court of chancery will not interpose by
injunction to restrain a garnishee from selling or disposing of property of
the debtor in his hands, when the bill contains no allegation that there is
any danger of loss by reason of the insolvency of the garnishee, before a
trial could be had in the suit at law.
Writ of Error to the Circuit Court of Cook county ; the
Hon. George Manierre, Judge, presiding.
John R. Bigelow, Charles H. Hayden and Henry W. Bige-
low, the plaintiffs in error, exhibited their bill in chancery in
the court below, against Henry W. Andress, Charles Andress
and Charles W. Earl, in which it was set forth that previously
thereto, to wit, on the oth day of December, 1861, the com-
plainants had caused a writ of attachment to issue out of the
said Circuit Court, against the goods and chattels, lands and
tenements of the said defendant, Henry W. Andress, which
said writ had been served by summoning Charles ~W. Earl
as garnishee of said Henry W. Andress.
That the defendant, Henry W. Andress, was formerly en-
gaged in the paper-hanging business, in the city of Chicago,
in this State, and between the 8th day of September, 1859,
and the 1st day of May, I860, purchased goods of the com-
plainants on a credit, and that for such goods so purchased of
the complainants, the said Henry W. Andress was, on the
first day of December, 1861, indebted to them in about the
sum of eight hundred and forty dollars, which sum was due
and remained wholly unpaid.
324 Bigelow et al. v. Andress et al. [April T.
Statement of the case.
That recently, the said Henry W. Andress made a pretended
sale or transfer of his stock of goods to his co-defendant and
father, who resides in the city of Cincinnati, in the State of
Ohio, and that said Charles Andress claimed and pretended to
own said stock of goods, and was, by his pretended agent,
Charles W. Earl, selling and disposing of them in said city
of Chicago, where the goods still remained, the said Henry
W. Andress having left Chicago for parts unknown to the
complainants.
That the said Charles W. Earl was then in possession of
said stock of goods, and engaged in selling and disposing of
them, as the agent or clerk of said Charles Andress.
That the defendants, Henry W. Andress and Charles An-
dress, were, some two years and a half previously, co-part-
ners in said business, in the city of Chicago ; that while so
engaged in business, they contracted debts, some of which the
said Charles Andress claims to have paid, and he pretended
that the said stock of goods was transferred to him by his said
eon, Henry W. Andress, in payment of the amount which
he, the said Charles Andress, had, or claimed to have, paid on
the said co-partnership indebtedness.
The bill further set forth, that the complainants were
remediless in the premises, at and by the direct and strict
rules of the common law, and could not have adequate relief,
except in a court of equity, and that they could not safely pro-
ceed to attach and sell the said goods of said Henry W. An-
dress, by reason of said pretended transfer, and of the claim
of said Charles Andress in and to said goods.
The bill charged, that the pretended sale or transfer of said
stock of goods from said Henry W. Andress to Charles
Andress, was fraudulent and void as to the complainants
and other creditors of said Henry W. Andress, and that it
was made for the purpose of hindering and delaying the
creditors of said Henry W. Andress in the collection of their
debts against him, and of placing said stock of goods beyond the
reach of the creditors of said Henry W. Andress, and that a
full and adequate consideration was not paid by said Charles
Andress to said Henry W. Andress for said stock of goods.
1863.] Bigelow et al. v. Andress et al. 3425
Statement of the case.
It was stated in the bill, that Henry W. Andress then had
no property within the State of Illinois, other than the said
stock of goods, out of which the complainants could make
any portion of their said debt against him.
The prayer of the bill was, that the said pretended sale or
transfer of said goods, from Henry W. Andress to Charles
Andress might be adjudged and decreed to be fraudulent and
void, and that the same might be ordered to be sold to satisfy
the amount which should be found to be due and owing to
the complainants from said Henry W. Andress, and that the
defendants, Henry W. Andress, Charles Andress and Charles
W. Earl, might be enjoined and restrained from selling,
assigning, transferring, delivering, or in any manner incum-
bering or disposing of, any of the said goods, so transferred
by Henry W. Andress to Charles Andress, or from paying
over, or in any manner disposing of, any money, the avails of
sales of said goods, until the further order of the court.
And to the end that the defendants might, if they could,
show why the complainants should not have the relief sought,
certain interrogatories were propounded to the defendants,
touching the object of the transfer of the goods from Henry
W. xindress to Charles Andress, and in relation to the other
facts alleged in the bill.
And finally, the complainants prayed that Henry W.
Andress might be, in like manner, prohibited from making
any assignment of his property, and from confessing any
judgment, for the purpose of giving preference to any other
creditor over them, and from doing any other act to enable
other creditors to obtain his property ; and that a receiver
might be appointed, according to the course of practice in the
court of chancery, and with the usual powers of receivers in
like cases, of all the property, equitable interests, things in
action, and effects, of the said Henry W. Andress — and
prayed for general relief, and for an injunction.
To this bill the following demurrer was interposed:
And the said Charles Andress and Charles W. Earl, by
Scates, McAllister & Jewett, their solicitors, by protestation,
not confessing or acknowledging all or any of the matters and
326 Bigelow et al. v. Andress et al. [April T,
Statement of the case.
things in the said complainant's bill to be true in such manner
and form as the same are therein set forth and alleged, do
demur thereto, and for cause of demurrer show that the
complainants have not, bj their said bill, shown such a case
as entitles them to any such relief as is thereby prayed,
inasmuch as it does not appear thereby that they have ever
obtained any judgment at law against the said Henry W.
Andress upon the said supposed indebtedness, or that there
has ever been any lien obtained or acquired by the issuing of
any execution against the said Henry W. Andress ; and
inasmuch as it also appears thereby, that at the time of filing
their said bill of complaint, the said complainants had only
sued out an attachment against the estate of said Henry W.
Andress, and it does not in any manner appear in and by the
said bill of complaint that the complainants have recovered
any judgment whatever in the said attachment suit in said
bill mentioned.
Wherefore these defendants demand the judgment of this
honorable court, whether they shall be compelled to make any
further answer to the said bill, or any of the matters or things
therein contained, and pray to be hence dismissed, etc.
The demurrer was sustained by the Circuit Court, and the
complainants electing to stand by their bill of complaint, the
same was dismissed. Thereupon the complainants sued out
this writ of error.
Under the assignment of errors, two questions are presented :
First. Whether by commencing a suit by attachment, and
the service of garnishee process, the attaching creditor acquires
such a lien upon property in the hands of the garnishee, as
will authorize a court of equity to interpose by injunction to
prevent him from disposing of it, before a judgment and exe-
cution are had in the proceeding at law.
Second. Whether, independent of a lien, the court will
entertain a bill to preserve the property, until it can be sub-
jected to a sale on legal process, on the ground that the
garnishee has acquired all his rights to the property in fraud
of the creditors of the defendant in attachment.
1 863.] Bigelow et al. v. Andress et al. 327
Briefs of Counsel.
Messrs. E. S. Smith, and E. A. Storks, for the piaintiits
in error.
Upon the first proposition it is contended that from the time
of garnishment the effects in the hands of the garnishee are
m oustodia legis. Brashear v. West, 7 Peters' R. 608 ;
Biggs v. Kouns, 7 Dana, 405. And under the statute, all
goods and effects of the debtor in the hands of the garnishee
are liable to satisfy the judgment. Rev. Stat. 1845, p. 67,
sec. 15.
Then as between the attaching creditor and the garnishee,
the former has a lien upon the property of the debtor in the
hands of the latter for the satisfaction of his debt. Tappan
v. Evans, 11 N. Hamp. R. 311 ; Kiitredge v. Warren, 14 ib.
509 ; Stone v. Anderson, 6 Foster, 506 ; Camp v. Bates, 11
Conn. 53; Bunt v. Field, 1 Stockton (N. J.) 36; Falconer
v. Freeman, 4 Sand. Ch. 565.
The question was then presented, whether a court of equity
would interpose its restraining power to prevent the disposi-
tion or transfer of property fraudulently conveyed, and in the
hands of a fraudulent vendee, before judgment at law. The
case of Wiggins v. Armstrong, 2 Johns. Ch. R. 144, was
cited as having been considered opposed to such interference
by a court of equity, until a judgment at law had been
obtained, and in that case Chancellor Kent cited the cases of
Angell v. Draper, 1 Yern. 329 ; Shirley v. Watts, 3 Atk.
200 ; Bennett v. Musgrove, 2 Yes. 51 ; and a case before Lord
Nottingham, cited in Batch v. Wastall, 1 P. Wms. 445, as
sustaining his decision.
But there is a distinction between the case of Wiggins v,
Armstrong, and the one at bar. That was put upon the
ground that the party seeking relief had no lien upon the
property ; here, the attaching creditor having a lien on the
effects in the hands of the garnishee, a court of equity will
preserve the property until judgment is obtained. Beck v.
Burdett, 1 Paige, 305 ; Andrews v. Durant, 18 New York,
500; Tappan v. Evans, 11 N. Hamp. 311; Kittredge v,
Warren, 14 N. Hamp. 509 ; Stone v. Anderson, 6 Foster,
328 Bigelow et al. v. Andress et al. [April T.
Briefs of Counsel.
506 ; Dodge v. Griswold, 8 Is . Hamp. 425 ; Camp v. Bates%
11 Conn. 53 ; Hunt v. Meld, 1 Stockton (N. J.) 36 ; Falco-
ner v. Freeman , 4 Sand. Ch. 565 ; Lewis v. Dodge, IT How,
P. Kep. 229 ; Heyneman v. Dannenberg, 6 Cal. 276 ; Holt v.
Bancroft. 30 Ala. 205 ; Smith v. Gettinger, 3 Kelly (Geo.)
140.
Upon the second question :
It is enough that the complainants have an apparent right,
though not yet established at law, which would be irreparably
injured, unless the court restrain the com mission of the act
threatened, and preserve the property, pending the action in
which that right is to be determined. Great Western Rail-
way Go. v. Birmingham and Gxford Ju?iction Railway Co.,
2 Phillips, 601 ; The Shrewsbury and Chester Railway Co,
v. The Shrewsbury and Birmingham Railway Co., 4 Eng.
Law & Eq. 176 ; Curtis v. Marquis of Buckingham, 3 Yesey
& Beames, 168 ; Fchliff v. Baldwin, 16 Yes. 267 ; Quacken-
bush v. Van Riper, 2 Green Ch. 356 ; Huntington v. Bell,
2 Porter, 51 ; Miller v. Washburn, 3 Ired. Ch. 161 ; Smith
v. Koontz, 4 Hay. 189 ; Rutherford v. Metcalf 5 Hay. 58 ;
Seneca Woolen Mills v. Tillman, 2 Barb. Ch. ; Smith v. Carll,
5 Johns. Ch. 120; Hampson v. Hampson, 3 Yesey &
Beames, 42 ; Clark v. Clark, 2 Yern. 413 ; Addison v, Daw-
son, 2 Yern. 678 ; (Mark v. Ilanaway, 2 P. Wins. 203 ; Ben-
nett v. Wade, 2 Atk. 324 ; Wright v. Proud, 13 Yes. 136 ;
Hale v. Warner, 9 Yes. 605 ; King v. King, 7 Yes. 172 ; The
Universities of Gxford and Cambridge v. Richardson, 6 Yes.
706 ; Crockford v. Alexander, 15 Yes. 138 ; Twort v. Twort,
16 Yes. 128 ; Kender v. Jones, 17 Yes. 110; Cullcowper v.
Baker, 17 Yes. 128 ; Prince Albert v. Strange et al., 1 Mc-
Naughten & Gordon, 46.
So where a debtor who has made a fraudulent sale of his
property, dies before the creditor's rights are ascertained at
law, equity will interpose. Martin v. Densford, 3 Blackf.
295 ; The Unknown Heirs of Whitney v. Kimball, 4 Ind.
548 ; O* Bricn v. Coneter, 2 Blackf. 421 ; Sweney v. Ferguson,
ib. 129.
And where the debtor is a non-resident. Qockrell v. War-
1863.] Bigelow et at. v. Andress et at. 329
Briefs of Counsel.
tier, 14 Atk. 345 ; Green v. Campbell, 2 Jones' Eq. 448 ; Gol-
den v. Maupin, 2 J. J. Marsh. 233 ; Hieronymous v. Hicks,
3 ib. 701 ; Moore v. Simpson, 5 Litt. 49 ; Hunt t. Clay, Litt.
Sel. Cas, 26.
Also, where legal remedies are incomplete. Gascoyne v.
Lamb, 11 Jur. 902 ; Burdett v. Booth, 10 L. J. (n. s.) 356 ;
Whit?nore v. Oxborrow, 2 Young & Col. ; Larkins v. Paa?-
fcw, 2 Beavan, 319 ; Jendewine v. Agate, 5 Bress. 283 ; Hil-
ton v. Lord Granville, 4 Beavan, 137 ; Grayson v. Booth, 5
Hare; Hay ward v. Bimsdale, 17 Yes. 110; Gilbert v.
Hales, 8 Beav. 236 ; Lister v. Turner, 5 Hare, 290 ; jEZs^v v.
Luytens, 8 Hare, 159.
Messrs. McAllister, Jewett & JacksoNj for the defendants
in error.
The single question in the case is, not whether fraud is a
ground of equity jurisdiction, as a general proposition ; but
whether the bill, upon its face, shows that the complainants
are in a position to ask the interference of a court of equity
in their behalf. The effects of the debtor in the hands of the
garnishee, were not in custodia legis. The cases in 7 Peters,
608, and 7 Dana, 405, do not establish the proposition of
counsel in that regard. The former decision rests solely upon
a statute of Pennsylvania, which is different from ours; and
the case in 7 Dana contains no allusion to the subject.
The mere issuing of the writ of attachment creates no lien
upon property of the debtor, nor does the service upon the
garnishee create a lien upon effects in his hands.
The complainants are simple contract creditors, and equity
will not interpose in their behalf to prevent the garnishee
disposing of the debtor's effects in his hands. Angell v. Dra-
per, 1 Yern. 399 ; Bennett v. Musgrove, 2 Yes. Sen. 51 ;
Wiggins v. Armstrong, 2 Johns. Oh. R. 144 ; Brinkerhoff
v. Brown, 4 Johns. Oh. R. 671 ; Beck v. Burdett, 1 Paige,
305.
Our statute furnishes a most apt and pertinent authority on
42— 31st III.
330 Bigelow et al. v. Andress et al. [April T.
Opinion of the Court.
this point. Section 26, chapter 21, Rev. Stat. 1845, entitled
" Chancery," provides that —
" Whenever an execution shall have been issued against
the property of a defendant, on a judgment, at law or in
equity and shall have been returned unsatisfied, in whole or
in part, the oarty suing out such execution may file a bill in
chancery," etc.
We do not claim that the court of chancery gets its juris-
diction in cases of creditors' bills, by virtue of this statute ;
but we do claim that it is at least, declaratory of the law, and
the practice of courts of chancery upon this subject ; and, as
such, is binding upon the courts of this State, and so it has
been regarded. Ballentine et al. v. Beall, 3 Scam. 203 ;
Miller et al. v. Davidson, 3 Gilm. 523; Manchester et al. v.
McKees Ex'rs, 4 Gilm. 515 ; Farnsworth v. Strasler, 12 111.
485 ; Ishmael v. Parker, 13 111. 328 ; Hitt et al. v. Ormsbee,
14 111. 233 ; Greenway et al. v. Thomas et al, 14 111. 271.
Mr. Justice Walker delivered the opinion of the Court :
This record presents two questions for determination.
First, whether by commencing an attachment suit, and the
service of garnishee process, the attaching creditor acquires
such a lien upon property in the hands of the garnishee, as
will authorize a court of equity to interpose its restraining
power, to prevent him from disposing of it before a judgment
and execution are had in the proceeding at law. The second
is, whether, independent of a lien, the court will entertain a
bill to preserve the property, until it can be subjected to a sale
on legal process, on the ground, that the garnishee has ac-
quired all of his rights to the property, in fraud of the
creditors of his vendor.
In reference to the first proposition, it may be said, that the
plaintiff in attachment acquires all of his rights in that pro-
ceeding, from the statute. If a lien exists by virtue of the
service of garnishee process, it is by virtue of the statute, as
this proceeding is unknown to the common law. And the
1863.] Bigelow et al. v. Andress et al. 331
Opinion of the Court.
statute has not, in terms, made such service a lien upon the
effects of the debtor, in the hands of the garnishee. Under
the act regulating attachments, it seems to be the levy alone
which creates a lien on property. The delivery of the writ
to the officer does not, as with an execution on a judgment,
create a lien. Pierson v. Pobb, 3 Scam. 139. It is true, the
act does not give any priority of lien to the first levy, but
requires a pro rata disposition of the proceeds of the sale
of the property attached, on all the judgments against the
defendant, rendered at the same term, on writs issued to that
term.
It has been held, that such a levy is a qualified lien on the
estate attached for the satisfaction of the debt, which becomes
merged in the judgment. The People v. Cameron, 2 Gilm.
471. It was again held, that a levy on real estate, under a
writ of attachment, pursued to judgment, execution and sale
made tinder it, operates as a lien on the land, from the date
of the levy. Martin v. Dryden, 1 Gilm. 213. Again, the
court, in the case of Burnell v. Robertson, 5 Gilm. 282, held,
that where personal property was sold at private sale, by the
defendant in attachment, and the purchaser had not reduced
it to possession before the writ was levied, it was subject to
the attachment. These cases establish the fact that a lien is
created by the levy of the writ upon the property.
But this question of whether the service of the garnishee
summons creates an actual or a qualified lien upon the effects
in the hands of the garnishee, has not been determined, in
terms, by this court. If, as we have seen, it is the levy upon
the defendant's property which, alone, creates the lien, we are
at a loss to perceive how the mere service of a summons on a
third person to appear and answer whether he is indebted to,
or has effects of the defendant in his possession, can create
a lien of any character. It is the seizure of the property
under the writ, and not its delivery to the officer, that consti-
tutes the lien. It is not notice, actual or constructive, as in
case of & fi. fa., that produces that effect. The property is
only in the custody of the law, when it is reduced to the pos-
session of the officer.
332 Bigelow et al. v. Andress et al. [April T.
Opinion of the Court.
By the service of the garnishee process, there can be no
pretense that the property is, in any sense, transferred to the
officer, or that he thereby acquires any right to control it.
The garnishee still has the right to retain it, and by the service,
only becomes liable to account for it or its proceeds, if judg-
ment shall be rendered against him on the trial. The statute
does not prohibit him from disposing of it, but only renders
him liable on failing to produce it, to satisfy the judgment.
The fifteenth section, it is urged, renders the property in
the hands of the garnishee liable to satisfy the judgment against
the debtor in attachment. The judgment there referred to
is, obviously, the one that may be recovered against the gar-
nishee. The latter clause of this section only has reference
to the judgment that may be recovered against the garnishee.
By this provision, not only his, but the debtor's property in
his hands, are made liable to satisfy the judgment against the
garnishee.
The statute has nowhere provided for the sale of property,
in the hands of the garnishee, to satisfy the judgment against
the debtor. This would seem to place it beyond doubt, that
it was not the design of the legislature to create any lien on
such property. It was, however, regarded as eminently just,
that the garnishee might surrender the debtors property in
his hands, to satisfy the judgment recovered against him, not
because he was a debtor, but a mere bailee, and in no default
to any person.
It is insisted, that the construction contended for was given
to a similar statute in Pennsylvania. Brashear v. West, 7
Pet. 608. But the provisions of that act are materially dif-
ferent from ours. It provides, that the officer executing the
attachment, " shall go to the house, or to the person in whose
hands or possession the defendant's goods or effects are sup-
posed to be, and then and there declare, in the presence of
one or more credible persons of the neighborhood, that he
attached the same goods or effects. From and after which
declaration, the goods, money or effects so attached, shall re-
main in the officer's power, and be by him secured, in order
to answer and abide the judgment of the court in that case,
1863.] Bigelow et al. v. Andress et al. 333
Opinion of the Court.
unless the garnishee will give security therefor." It will be
observed, that this statute, unlike ours, expressly declares that
the property shall remain in the power of the officer, and be
secured by him, to abide the judgment of the court. Our
statute does not require the officer to secure the property, nor
does it require the garnishee to enter into bond before he can
be permitted to .retain it in his custody.
If the garnishee desires to free himself of all liability, he
may surrender the property to the officer, and terminate the
responsibility of its custody. Or, he may turn it out to be
sold on execution to satisfy the judgment against himself.
This is provided for by the statute. These provisions all repel
the presumption that the legislature designed to create any
lien upon, or place the property in the hands of the garnishee,
in the custody of the law.
Then will a court of equity, independent of any lien ac-
quired by the garnishment, entertain the bill, on the ground
of alleged fraud upon the creditors of the defendant in attach-
ment, by the sale of his property to the garnishee? If so, it
can only be, for the reason, that complainant does not have a
perfect, adequate and complete remedy at law. He has resort-
ed to his action at law, and by that proceeding has acquired no
other or different right to, or interest in, the property than he
had before the proceeding was instituted. He may have ac-
quired rights against the garnishee, but not against the property
of the defendant in his hands. Nor can we perceive that his
footing in a court of equity, is any better or different than if
the attachment had not been sued out. And we are not aware
that it has ever been seriously contended that an equitable
attachment could be sustained. It wxas, no doubt, because no
such remedy existed, that the legislature provided the means
of reaching the property by garnishee process.
We are unable to perceive any thing to prevent the suit at
law from progressing to its final termination, precisely as at-
tachment suits always do. If discovery is desired, it can be
as effectually had by the answer of the garnishee as by his
answer to a bill. The interrogatories propounded to him may
be made as searching and efficacious, as if they were contained
334 Bigelow et al. v. Andress et al. [April T.
Opinion of the Court.
in a bill. If the answer of the garnishee is untrue, it may be
contradicted as well as an answer to a bill. Nor do we see
that any grounds are shown for an injunction, to restrain the
garnishee from disposing of the property. The bill contains
no allegation that there is any danger of loss before a tria.
can be had at law.
Complainants having no judgment, execution, or even a
lien on the property, . they occupy the same situation as any
other simple creditor, and an allegation of danger of loss would
not give jurisdiction, in such a case. The current as well as the
weight of authority, both in Great Britain and this country,
seems to be, that a court of equity will not interfere, until the
plaintiff has obtained his judgment ; if he desires to have a
fraudulent obstruction removed, or if it is to subject an
equitable estate, not liable to sale on execution, he must
exhaust his legal remedies, by obtaining a judgment and a
return of nulla bona, before a court of equity will afford such
relief.
This question is not one of first impression in this court,
but has been repeatedly before it for adjudication. In the
case of Ballentine v. Beall, 3 Scam. 203, it was held, that
when a creditor has obtained a judgment and has his execu-
tion returned no property found, he may file his bill, to subject
property to the payment of his debt, not liable to sale on exe-
cution. In the case of Miller v. Davidson, 3 Gilm. 518,
it was held, that where a party desires to remove a fraud-
ulent incumbrance out of the way of an execution, he may
file his bill as soon as he obtains his judgment. But if he
seek to satisfy his debt out of an equitable estate, not liable
to sale on execution at law, then he must exhaust his legal
remedy, by getting judgment, and an execution returned no
property found, before he can resort to equity.
In the case of Manchester v. McKee's JEtfrs, 4 Gilm. 511,
the same rule is announced, as in Ballentine v. BealL And
in the case of Farnsworth v. Strasler, 12 111. 482, it was held,
that the court of equity would entertain a bill to remove a
fraudulent conveyance, to obtain satisfaction of a money de-
cree, where an execution had already been levied upon the
1863.] Bigelow et al. v. Andress et al. 335
Opinion of the Court.
property. And in the case of Ishmael v. Parker, 13 111. 324,
the same rule was adopted, as in Miller v. Davidson.
Subsequently, in the case of Greenway v. Thomas, 14 111.
271, all of the questions involved in the case at bar were be-
fore the court, when it was held that a creditor, -as a general
rule, must first reduce his debt to a judgment before he can
resort to a court of equity for aid in its collection. It was
likewise held, that the rule would not be relaxed, if it was in
his power to comply with this requirement. In that case, the
bill alleged that the debtor had left the State, after having
made a fraudulent assignment for the benefit of his creditors,
and put his assignees in possession of his property. It was
also alleged, that process could not be served upon him, as an
excuse for not first having obtained a judgment at law. It
was there said, " that under these circumstances, there would
have been no trouble in prosecuting an action at law, by attach-
ment, under our statute, in which he could have reduced his
demand to a judgment. The assignment being fraudulent
and void as to creditors, the attachment might have been
levied directly upon the assigned property, and taken from
the possession of the assignees ; or, if complainant did not
choose to assume the responsibility of such a course, in antici-
pation of a decision upon the validity of the assignment, he
might at least have garnisheed the debtors of the assignors.
It is true, he would not have obtained a personal judgment,
but he would still have established his claim in a court of law,
which would, at least as to the property and credits attached,
have authorized him to have called upon the aid of a court of
chancery to remove the embarrassments which the fraudulent
assignment presented to the collection of his debt."
These cases settle the doctrine, that the complainant must
first establish his claim at law, before a court of equity will
lend its aid. And it is for the reason that a court of chancery
does not assume jurisdiction, to settle and establish purely
legal rights. If jurisdiction were entertained in this case to
ascertain the legal validity of complainant's demand, it being
wholly of a legal character, so as to afford relief against ob-
structions that would afterwards present themselves to an
336 Bay et al. v. Cook. [April T.
Syllabus.
execution, no reason is perceived why such jurisdiction might
not be assumed in all cases, where legal demands might be
so obstructed. This would be an innovation on the settled
practice of this court, as well as the chancery practice gen-
erally. Whatever may have been held in other courts, we
regard this as the practice of this court, too long and too
firmly settled to be departed from, simply because it may
have been differently held in some other tribunals. If the
authorities were uniform against it, and it was not calculated
to promote justice, then there might be some reason for a
change. But when such is not the case, and the current of
authority sustains the practice, we must adhere to the rule as
the settled doctrine of the court. These decisions are con-
clusive of this case, and the decree of the court below must
be affirmed.
Decree affirmed.
John S. Bay et al.
v.
Isaac Cook.
1. Advancement, by parent to child — its characteristics — when sustain-
able as regards creditors, prior and subsequent, etc. When a parent pur-
chases land with his own means, in the name of his infant child, it has
generally been considered an advancement.
2. But it is a question of intention, each case to be determined by the
reasonable presumption arising from all the facts and circumstances con-
nected with it. It is always competent to meet and repel the presumption,
by proof of circumstances showing it was not intended as an advancement.
3. When fraud is established, that presumption is effectually repelled..
4. A parent may give to his child, so much of his estate as he pleases,,
provided he retains enough to answer all subsisting demands against him-
self.
5. Whether such gifts are valid or not, and made without the intention
to injure creditors, is wholly a matter of inference from the facts.
6. An advancement to a child, may be regarded in the same light as a
voluntary settlement of property upon him by the father. The difference
is only in the form.
1863] Bay et al. v. Cook. 337
Syllabus.
7. In such case, it is not necessary the father, making the settlement,
should be actually indebted at the time he makes it, to render it fraudulent;
if he does it with a view to his being indebted at a future time, it is
equally fraudulent, and will be set aside.
8. A deed executed by a third person to the child, by the procurement
o* the parent, is, to all intents and purposes, a deed from the parent to him.
9. It is contrary to public policy to allow a security upon the official
bond of a deputy sheriff, so to advance a son, or make a voluntary settle-
ment upon him of all his estate, as to defeat the bond.
10. It would be but right that courts should hold such contingent lia-
bilities as eqaivalent to ao actual judgment.
11. So, where a party who was security upon the official bond of a deputy
sheriff, the condition of which was broken, used the greater portion of his
means in purchasing land in the name of his infant child, the residue of his
property being insufficient to pay his obligation under the bond, it was held,
the gift was fraudulent as to the creditor, and the child held the land in
trust for his benefit.
12. Sales op personalty — non-delivery— fraud. If a person sells per-
sonal property and does not deliver it to the vendee, there being no agree-
ment in the bill of sale that the possession should remain with the vendor,
the sale will be deemed fraudulent as to creditors of the vendor.
13. Fraud — inadequacy of price. And where a party who was heavily
in debt sold personal property of the value of $500, for $50, the gross
inadequacy of the price for which the property was sold, was deemed evi-
dence of fraud as to creditors of the vendor.
14. Creditors' bills — execution must be returned nulla bona. Ordinarily
an execution must issue on a j udgment, and be returned unsatisfied, before
a resort to a court of equity to reach real estate in which the judgment
debtor has not such an interest as might be sold on execution.
15. Same — the rule is otherwise in proceedings against intestate estates.
Yet in proceedings against intestate estates, which are insolvent, a resort to
equity may be had without this preliminary, as our statute does not permit
an execution to be issued upon a judgment against an administrator.
16. Pleading in chancery— averment of insolvency of an estate. Where
it is alleged in a bill in chancery that the complainant's claim against an
estate is allowed to the amount of $6,000, and over, and that the executor
claims to have filed a full and perfect inventory, which amounts to only
$115, that is a sufficient averment of the insolvency of the estate.
17. Judgment cannot be impeached in chancery for error. If a judg-
ment at law is in full force, and rendered by a court of competent jurisdic-
tion, and no fraud in obtaining it is alleged, its validity cannot be inquired
Into in a court of chancery. However erroneous it may be, it must have
full force, until it is reversed.
43— 31st III.
338 Bay et al. v. Cook. [April T.
Briefs of Counsel.
Witrr of Error to the Superior Court of Chicago.
The facts of this case are sufficiently set forth in the opinion
of the court.
Mr. E. A. Storrs, for the plaintiffs in error.
There are no equities in the bill ; and herein
1. It affirmatively appears from the bill, that the convey-
ance sought to be avoided was made by Joseph Smith to
Edgar T. Bay, the son of Henry B. Bay, and that the con
sideration was paid by the latter. The presumption therefore
is, that it was an advancement. Vanzant v. Dairies, 6 Ohio
State, 54 ; Creed v. The Lancaster Bank, 1 Ohio State ; Story's
Eq. Jurisp., sec. 1202.
2. There is, therefore, in such a case, no presumption of a
resulting trust in favor of the donor, but, on the contrary, that
it was induced by natural love and affection, as such, founded
upon a good consideration. And a creditor of the donor, in
order to impeach the validity of the conveyance, must show
some circumstances of fraud. Doyle v. Sleeper, 1 Dana, 531 ;
Baker v. Dobyns9 4 Dana, 220; Guthrie v. Gardner, 19 Wend.
414.
3. A conveyance of this character is not per se fraudulent
and void as to existing creditors. It does not come within
the statute, unless, made by one in embarrassed or insolvent
circumstances. Cadargan v. Kennett, Cowp. 432 ; Law v.
Smith, 4Ind. 61 ; Clayton v. Brown, IT Georgia, 220 ; Walker
v. Burrows, 1 Atk. 93; Lush v. Wilkinson, 5 Yesey, 384 ; Smith
v. Reaves, 7 Ired. (Law) 343 ; Smith v. Tell, 3 Eng. 474 ; Wilson
v. Howser, 12 Penn. State, 116 ; Mateer v Uissim, 2 Penn.
160 ; Thompson v. Dougherty, 12 S. & K. 448 ; Verplanck v.
Story, 12 Johns. 536.
4. By the third section of our statute of frauds and per-
juries, all sales and conveyances made upon a good considera-
tion and bona -fide, are excepted from the operation of the
statute. Natural love and affection is a good consideration,
and will support the deed unless it be shown to have been
1863.] Bay et at. v. Cook. 339
Briefs of Counsel.
made in bad faith, and in which the vendee must be shown to
have participated. Ewing v. Gray, 12 Ind. 64.
5. A general allegation of fraud in a bill is not sufficient.
Facts must be stated, which will justify such a conclusion.
Blondheim v. Moore, 11 Met. 383 ; Bodine v. Edwards, 10
Paige, 504 ; Small v. Boudinot, 1 Stockt. Ch. 391 ; Kinder
v. Macy, 7 Cal. 207 ; Moore v. Green, 19 How. 72 ; Cockrell
v. Gurley, 26 Ala. 405 ; Bryan v. Spruill, 4 Jones' Eq. 27.
6. It does not appear that the complainant has exhausted
his legal remedies.
It is alleged that the execution was issued March 12, 1857,
returned November 21, 1857, by order of the court, and that
Henry B. Bay died in September, 1860. It is not alleged
that any levy was ever made, nor that the execution was re-
turned unsatisfied. Wiggins v. Armstrong, 2 Johns. Ch.
144 ; Moran v. Dawes, 1 Hopk. Ch. 365 ; Brinherhoff v.
Brown, 1 Johns. Ch. 670 ; Beck v. Burdett, 1 Paige, 305 ;
McDermott v. Strong, 4 Johns. Ch. 689 ; Stone v. Manning,
2 Scam. 534.
7. The rule is now well established, that a voluntary settle-
ment in favor of a wife or children, is not to be impeached by
subsequent creditors on the ground of its being voluntary,
but fraud in fact must, in such cases, be affirmatively shown.
Sexton v. Wheaton, 8 Wheaton, 229 ; Salmon v. Bennett, 1
Conn. 525 ; Ward v. Rollins, 14 Met. 158 ; Bank v. Bah
lard, 12 Rich Law (S. C.) 259 ; BulUtt v. Taylor, 34 Miss.
708 ; Hone v. Volcano, etc., 13 Cal. 62 ; Nicholas v. Ward,
1 Head, 323 ; Enders v. Williams, 1 Met. 346 ; Todd v. Hart-
ley, 2 Met. 206 ; Watson v. Wilson, 1 Grant's Cases, 74 ; Cole
v. Tamer, 31 Ala. 244; Williams v. Banks, 11 Met. 198;
Ingrew v. Phillips, 3 Strobh. 565 ; Swayze v. Doe, 13 S. &
M. 317 ; Martin v. Oliver, 9 Humph. 561 ; Pepper v. Car-
ter, 11 Miss. 540 ; Starr v. Strong, 2 Sand. Ch. 139 ; Hanson
v. Buckner, 4 Dana, 251 ; Bennett v. Bedford Bank, 11
Mass. 421 ; 1 Am. Lead. Cases, 67 et seq., and cases cited.
8. At the time the conveyance was made to Edgar T. Bay,
the defendant in error was not a creditor of Henry B. Bay.
There has been no breach of the condition of the bond exe-
cuted to the plaintiff in error. McLaughlin v. Bank of
Potomac, 7 How. 229 ; Kmg v. Thompson, 9 Pet. 220 ;
340 Bay et ah v. Cook. [April T.
Briefs of Counsel.
Heighe v. Fwmeri Bank, 5 Har. & Johns. 68 ; Seward v.
Jackson, 8 Cowen, 436 ; Hancock v. Entwistle, 3 Durn. & E.
435 ; 1 Johns. Cases, 73 ; Lansing v. Prendergrast, 9 Johns.
R. 127 ; Van Wyck v. Seward, 6 Paige, 66 ; S. C. affirmed,
18 Wend. 375.
Mr. W. T. Burgess, for the defendant in error.
The first question presented is, was Isaac Cook a creditor of
Henry B. Bay at the date of the conveyance of the land to his
infant son ?
In Chouteau v. Jones et al.9 11 111. 318, this court said,
" The relation of debtor and creditor between principal and
surety, so as to entitle the latter to avoid a voluntary convey-
ance, made by the former, commences at the date of the obli-
gation by which the surety becomes bound, and not from the
time he makes payment." Howe v. Ward, 4 Greenlf. 195 ;
Thompson, v. Thompson, 19 Me. 244 ; Carlisle v. Rich, 8 N.
H. 44.
The case of Howe v. Ward, is a parallel case to the present
one. See also 5 Cow. 67, IS Wend. 383, and 8 Cow. 429.
Then was such conveyance fraudulent as to Cook?
The rule as laid down in Read v. Livingstone, 3 J. Ch. R.
481, is the true rule. See in this connection, 18 W. 399.
Hutchinson v. Kelly et al., 1 Robinson (Va.) R. 135, is a
strong and strictly parallel case.
In the case of Sexton v. Wheaton, 8 Wheat. 243, C. J.
Marshall says : "In construing this statute, the courts have
considered every conveyance not made on consideration
deemed valuable in law, as void against previous creditors."
The next question is, was the aid of a court of equity to set
aside this conveyance properly invoked?
In McDowell v. Cochrane, 11 111. 31, it is held that, ordina-
rily, a creditor must exhaust his legal remedies before calling
to his aid the powers of a court of chancery. But insolvent
estates are an exception, as execution cannot issue against an
administrator.
The same rule adopted in Chouteau v. Jones, 11 111. 319.
In this case we took out execution in June, 1857. That
execution was stayed by the Circuit Court, and the judgment
1863.] Bay el al. v. Cook 341
Briefs of Counsel.
set aside. The case then came to this court, and the order
Betting aside the judgment was reversed in April, 1859. The
opinion was not promulgated till April, 1860, after the death
of Bay, so that we had no opportunity to take out another
execution against him, and could only do as was done in
Chouteau v. Jones, get judgment as the administrator, and
then file our bill.
The counsel has entirely mistaken the nature of this bill.
There was a resulting trust in favor of H, B. Bay, upon which
the judgment of May, 1857, was a lien, or the deed was
fraudulent as to Cook. Either way Cook had a right to have
this land applied in payment of his debt in judgment. The
case of Wightman v. Hatch, 17 111. 286, is in point, referring
to the case of Miller v. Davidson, 3 Gilm. 518.
Mr. Stores, in reply : The case of McDowell v. Cochrane^
11 111. 30, cited by the defendants in error, is not in point,
because there is no sufficient allegation of the insolvency of
Bay's estate. The allegation in the bill of complaint, that
John S. Bay, as executor, "pretends and claims that he has
filed a full and perfect inventory of the estate, both real and
personal, of Henry B. Bay, but has omitted therefrom said
real estate ; and if said inventory is correct, there is not suffi-
cient to pay said complainants claim," is not a sufficient alle-
gation of the insolvency of the estate, nor of the fact that
there is not sufficient real and personal property to pay the
judgment. State Bank v. Ellis, 30 Ala. 479; Quarles v.
Girgsby, 31 Ala. 172; Pharis v. McLeachman, 20 Ala. 662;
McGuire v. Shelby, 20 Ala. 456.
The case of Chouteau v. Jones, 11 111. 300, referred to by
defendants, is not applicable to this case. The question there
arose between the surety and the principal, and the court
say, " The relation of debtor and creditor betw en principal
and surety, so as to entitle the latter to avoid a voluntary con-
veyance made by the former, commences at the date of the
obligation by which the surety becomes bound, and not from
the time he makes payment." That this is a mere equitable
rule, founded upon the peculiar relations which subsist be-
342 Bay el al. v. Cook. [April T.
Opinion of the Court.
tween principal and surety, and which do not, as between
the obligee in the bond, and the surety, is evident from the
fact that, at law, the surety is not treated as the creditor of
the principal, even after condition broken, but only upon
actual payment. The case does not declare that the surety is
in fact, and to all intents and purposes, a creditor of the prin-
cipal before condition broken, but that he shall simply be
entitled to all the benefits of that position, in order to avoid a
voluntary conveyance made by the latter.
Nor are the cases, Howe v. Ward, 4 Greenlf. 195, and Oar-
lisle v. Rich, 8 New Hamp. 44, cited by the court in Chou-
teau v. Jones, applicable to this case. In Howe v. Ward, the
question arose between two sureties, and the conveyance
sought to be set aside was executed after the death of the
principal. In Carlisle v. Rich, the principal in the bond had
absconded before the alleged fraudulent conveyance was exe-
cuted.
Mr. Justice Breese delivered the opinion of the Court :
This was a bill in chancery in the Superior Court of Chicago,
by Isaac Cook, complainant, against the defendants, Edgar T.
Bay and others, seeking to subject certain property of Bay,
to the execution on a judgment obtained by Cook against
Henry B. Bay on the 30th May, 1857, and the others named
in the bill.
The facts of the case are briefly these. Cook was sheriff
of Cook county in 1850, and appointed Daniel T. Wood, one
of the plaintiffs in error, his deputy, who, on the twelfth of
March, 1850, executed his bond in the penalty of ten thou-
sand dollars with Henry B. Bay, and the others, his sureties,
conditioned that Wood, as such deputy, should faithfully dis-
charge all the duties required of him as deputy sheriff, and
save Cook harmless on account of any and all acts of the
deputy, or by color of his office.
An action was brought on that bond, in the Cook Circuit
Court, in which the breach assigned was, that Wood, as
deputy, had collected a large amount of State and county
1863.] Bay et al. v. Cook. 343
Opinion of the Court.
taxes, for which he had failed to account and pay over. A
judgment by default was entered against Wood and Bay and
the other parties, for the debt, to be discharged by the pay-
ment of the damages, which were assessed at five thousand
three hundred and eighty-two dollars and seventeen cents.
On the 12th of June, 1857, an execution was issued on this
judgment, which came to the hands of the sheriff, July 23rd,
and returned November 20th by order of the Circuit Court,
which order was set aside by this court.
After making the bond, and before May 1, 1851, Henry B.
Bay purchased from Joseph Smith, with his own money and
means, certain lands in Cook county, described as the west
half of lot 5, in block 81, in the School Section Addition to
Chicago, and paid for the premises on that day, and was
entitled to a deed therefor, but at his request, the conveyance
was made by Smith, to his son, Edgar T. Bay, then an infant,
in whom the title became vested.
Henry B. Bay entered into possession of the lot and erected
two houses upon it, and before his death, made a will by
which he devised the premises to this son Edgar, and
appointed John S. Bay, his brother, his executor.
This executor proved the will and obtained letters testamen-
tary, and filed an inventory in which he did not insert this
lot and premises as a part of the estate.
Cook's claim was allowed by the court of probate, to
$6,648.58, and placed in the fourth class, to be paid in due
course of administration.
It appears also, that Henry B. Bay was the one-third owner
of two steam dredging machines, which, shortly before his
death, he conveyed, by bill of sale, to John S. Bay, for the
sum of fifty dollars, and also all his interest, of every kind, in
several firms of which he had been a partner. These dredg-
ing machines were not included in the inventory, the executor
claiming them as his own.
The judgment against Henry B. Bay, as one of the sureties
of Wood, was unsatisfied, and no execution had issued upon
?t, except the one mentioned.
This was the position of the matter, when the defendant in
344 Bay et al. v. Cook. [April T.
Opinion of the Court.
error filed a bill in chancery against the defendants in the
judgment, and against Edgar T. Bay and John S. Bay, the
executors of Henry B. Bay, to subject this lot and premises,
and the interest in the dredging machines, to the payment of
the judgment.
The court decreed according to the prayer of the bill, from
which decree the plaintiffs here sued out a writ of error, and
have assigned for error, 1, that there was no breach of the
bond nor liability thereon, by Henry B. Bay, at the time of
the conveyance to Edgar T. Bay ; 2, a court of equity had no
jurisdiction of the case, no execution having been returned
unsatisfied ; 3, the decree is against law and evidence.
The first point made by the plaintiffs in error under this
assignment of errors, is, that the judgment upon which the
bill of complaint was filed, was not warranted by law, the
breach assigned in the declaration being a failure to pay over
taxes collected by Wood, and the bond being conditioned for
the faithful performance of his duties as deputy sheriff.
We do not suppose, if a judgment is in full force and
rendered by a court of competent jurisdiction, and no fraud
in obtaining it is alleged, that its validity can be inquired into
in a court of chancery. However erroneous it may be, it
must have full force, until it is reversed. But this court has
settled the character of the proceedings on the bond, and
have decided, that the breach was well assigned, and that the
sureties of the deputy sheriff must answer for his default in
failing to pay over the taxes he had collected in virtue of his
office. Wood et al. v. OooJc, ante, 271.
The second point made by the plaintiffs in error, is, that
there are no equities in the bill, and :nis is discussed under
fifteen subdivisions, and one of them, the tenth, is further
subdivided into five different propositions. We shail not
examine them all separately, nor follow the counsel on either
side, into the wide field of argumentation they have so dili-
gently explored, but content ourselves with the consideration
of what we deem the important points of the controversy.
It is urged by the plaintiffs in error, that as it affirmatively
appears from the bill, that the conveyance sought to be
1863.] Bay et at. v. Cook. 345
Opinion of the Court.
avoided was made by Smith to the son of Henry B. Bay, and
that the consideration was paid by the father, the presump-
tion is, that it was by way of advancement to the son.
Admit the principle, it is but a presumption, subject to be
rebutted by circumstances, or by evidence showing a different
intention. This is the doctrine of the cases cited by counsel,
and of all other cases which have come under our notice. It
is a question of intention, each case to be determined by the
reasonable presumption arising from all the facts and circum-
stances connected with it.
Thompson, C. J., in the case of Jackson v. Matsdorf, 11
Johns. 95, said the question had often been agitated in chan-
cery, whether, when a parent purchased land in the name of
his child, it should be deemed a trust for the father, or an
advancement for the child. When the child is under age it
has generally been considered an advancement.
It is always competent to meet and repel the presumption
by proof of circumstances, showing it was not an advance-
ment intended. Proseus v. Mclntyre, 5 Barb. 424. When
fraud is established, that presumption is effectually repelled.
A gift of property, real or personal, made by a parent to a
child, is a valid gift, where no creditors intervene, and who,
by the gift, are subjected to no loss. But such a transaction,
to be received favorably by the courts, must be clear of any
imputation of fraud, and free from the suspicion of a design to
injure creditors. A parent may give to his child so much of
his estate as he pleases, provided he retains enough to answer
all subsisting demands against himself. Whether such gifts
are valid or not, and made without the intention to injure
creditors, is wholly a matter of inference from the facts.
There is no suggestion in this case, that the infant son
possessed any money or means which could be appropriated
to the purchase and payment of this property, or that the
money was derived from him, directly or indirectly. On the
contrary, the proof is, that his father was, in August, 1850, a
partner in a public house in Chicago, called the New York
House, to the extent of one-half its stock, business and
fixtures, which he exchanged with Smith for this lot, directing
44— 31st III
346 Bay et al. v. Cook. [April T.
Opinion of the Court.
Smith to make the deed to his son. Should this, on the facts
proved, be deemed an advancement ?
The deed bears date August 20, 1850. What the value of
the interest in the New York House was, or what the lots
were worth, is not shown ; but it is shown, that the interest in
this public house was all the available means Bay then pos-
sessed. The deficit of the deputy is shown to have consisted
in omitting to settle up with the State for the taxes collected,
which should have been settled for at the pending July term
of that year. It is not an unreasonable or violent presump-
tion, that Bay, being one of the sureties, had an eye to the
manner in which the deputy was deporting himself, and was
apprised of this defalcation ; at any rate he knew he was on
the bond, and knew there was a possibility he might some day
be brought to judgment on it Sureties on official bonds, as a
general fact, do not regard the morality of an act with as
much consideration as they would, perhaps, if they were prin-
cipals, but rather believe they are justified in resorting to almost
any device to escape responsibility. The most usual one is,
by, in common parlance, " putting their property out of their
hands," at least such portions of it as are liable to execution.
Would it be uncharitable to believe that this idea of safety
from the bond through Smith, flashed across the mind of Bay %
He never had the legal title to the lot, and it could not be ex-
pected, therefore, that he owned it ; if it was in his infant son,
he might console himself with the prospect of a future home,
unannoyed by creditors, and unterrified by events. In this
3onfidence and hope, he erected houses on the lot, in one of
which he dwelt, and dying, devised the whole property, being
all he had, to this son, who it is claimed, owned it under the
deed from Smith. Can any rational man believe, under the cir-
cumstances thus briefly stated, that Bay intended this property
as an advancement to his son, when he gave all he had to buy
it, that it was all he had when he died, and that he made a for-
mal devise of it to the sou % If Bay intended it as an advance-
ment, why devise it, the title being in the son ? Can it be
doubted that the legal title was thus placed in the son for the
purposes we have stated % Does a father give all his property
to a son by way of advancement ?
1863.] Bay et al. v. Cook. 347
Opinion of the Court.
Again, dwelling-houses were erected on the lot by the
father. When they were erected is not in proof, nor their
cost. If they were built after May 30, 1857, the expenditure
of the money for them would be in fraud of the complainant,
whose judgment was then in force.
But the question is, was not Bay insolvent, at the time of
this conveyance ? In other words, had he property in his
possession of value sufficient to meet his obligations ? This is
not pretended; it is only claimed there were no judgment
creditors against him, when he purchased the lot and paid for
it. But here was a pecuniary obligation of ten thousand
dollars against him, with a condition, it is true, and that
condition broken at the time he purchased and paid for the
lot. Inforo conscientice he was the debtor of the defendant
in error. It being a question of intention, we have no hesi-
tation in affirming, from the facts and circumstances, that Bay
did not strip himself of all his property to advance his infant
son, but had the deed made to his son, that he, himself, in the
character of natural guardian, might continue in the undis-
turbed enjoyment of the property, and thus protect himself
against a recovery on the bond, the condition of which was
then broken. The spectre of this bond had a controlling in-
fluence over him — the condition had been broken ; and he
did not know how soon all he possessed might be swept from
him, as a consequence thereof. As a question of intention,
therefore, we cannot doubt, from the facts and circumstances,
that it was not as an advancement, the title to the lot was
taken to his infant son, but to shield it from his own respon-
sibilities, then existing.
An advancement to a child may, properly, be regarded in
the same light as a voluntary settlement of property upon him
by the father. The difference is only in the form ; but for
that, this transaction would be termed a voluntary settlement.
In such case, it is not necessary the father, making the settle-
ment, should be actually indebted at the time he makes it, to
render it fraudulent ; for if he does it with a view to his
being indebted at a future time, it is equally fraudulent, and
will be set aside. This principle is distinctly announced by
M8 Bay et al. v. Cook. [April T
Opinion of the Court.
Lord Chancellor Hakdwicke, in Stileman v. Ashdown, 2
Atkyns, 480, in Fitzer v. Fitzer et al., id. 512, and such is
the reasoning, in the case of Taylor v. Jones, id. 600. The
deed from Smith to the son, was, to all intents and purposes,
a deed from the father to him. Now a serious question pro-
trudes itself in this case. The bond executed by Henry B.
Bay was for the faithful performance of the duties of a public
office — it was an official bond for the security of the State in
the due execution of official duties ; is it the policy of the
law, that persons who shall voluntarily assume such obligations
and whose solvency has passed the proper ordeal, that they
shall be permitted, the next day, to divest themselves of all
the property, which enabled them to pass the ordeal, by a vol-
untary settlement of it upon a favorite child, a wife, or other
party, for the consideration alone, of love and affection ?
Where would be the security of the State, should such set-
tlements be countenanced and encouraged? In such cases,
it would seem right and just, that courts should hold such
contingent liabilities as equivalent to an actual judgment.
We think the facts show the inducement Bay had, to make
this settlement upon his son, and it being voluntary and
without a valuable consideration, must be regarded, under
the circumstances, not as an advancement, but as in fraud of
the bond he had executed.
As to the objection that the allegation of fraud is not suffi-
ciently specific, that is answered by the facts of the case.
They are few and simple, and are so clearly stated, as to
enable the parties charged to understand the character of the
acts in which the fraud is alleged to consist.
It is further objected that the bill contains no allegation that
the execution which issued in June, 1857, was levied, nor
that it was returned unsatisfied.
The case of McDowell v. Cochrane, 11 111. 30, disposes of
this objection. There it was held, that though ordinarily an
execution must issue on a judgment, and be returned unsat-
isfied before a resort to a court of equity, to reach real estate
in which the judgment debtor has not such an interest as
1863.] Bay et at. v. Cook. 340
Opinion of the Court.
might be sold on execution, yet in proceedings against
intestate estates which are insolvent, a resort to equity may
be had, without this preliminary, as our statute does not per-
mit an execution to be issued upon a judgment against an
administrator. The fact of insolvency is sufficiently averred
in the bill, by the reference to the inventory filed, which
amounts to one hundred and fifteen dollars only.
Under all the circumstances, we are bound to consider and
to hold, that of this real estate, the infant, Edgar T. Bay, held
the title in trust for the benefit of the defendant in error,
who was a subsisting creditor of Henry B. Bay, who pur-
chased and paid for it, he holding Bay's conditional obligation
for ten thousand dollars, a breach of which had occurred at
the time of the purchase and payment ; and also, upon the
ground of public policy, that it cannot be permitted a surety
in an official bond so to advance a son, or make a voluntary
settlement upon him of all his estate, as to defeat the bond.
In regard to the interest of Henry B. Bay in the dredging
machines, it appears he sold them in 1860, for the small sum
of fifty dollars, a short time only before his death, to his
brother, John S. Bay, whom he appointed his executor. The
machines were never delivered to John S. Bay, nor was there
any agreement in the bill of sale, that the possession should
remain with the vendor. This rendered the sale void for
fraud. But fraud is apparent in the price paid, under the
circumstances of the vendor. He was heavily in debt ; the
machines were valued at three thousand dollars, and were in
good working order when sold. The one-third interest was
variously estimated. Fox, who worked them and knew all
about them, says he would have paid five hundred dollars for
one-third interest, even if the other two-thirds were incum-
bered to the amount of their value.
There is no satisfactory proof that Bay's third was incum-
bered in any way. No mortgage is shown, and no mechanics'
liens proved. We are therefore to consider it as free from
incumbrances, and worth, at the lowest calculation, five hun-
dred dollars. A sale of it, under the circumstances shown,
350 Miller et al. v. Montgomery. [April T.
Statement of the case.
and for the price given, and the possession of the property not
passing to the vendee, constitutes, in both aspects, a fraud,
and leaves the property subject to the claims of creditors.
We concur with the Superior Court in the decree, and
affirm it in all its parts.
Decree affirmed.
George A. Miller et al.
v.
William Montgomery.
1. Payment — subsequent application to another debt. Where a pay-
ment has been properly applied upon a particular note, it is instantly
extinguished to the extent of the payment made ; and the note being made
by several, it can never, afterwards, be revived against any of the parties,
without the consent of all.
2. So, a payment having once been applied upon a note which was exe-
cuted by several as principals, and by another as security, cannot, after-
wards, be diverted from that application, to another debt, upon the mere
agreement of one of the principal makers with the holder, so as to revive
the original indebtedness against the security.
3. An attempt thus to revive an extinguished liability would be a fraud
upon the surety.
Appeal from the Circuit Court of McHenry county ; the
Hon. Isaac G. Wilson, Judge, presiding.
This was an action of assumpsit instituted in the Circuit
Court, by Montgomery, against the appellants, upon a prom-
issory note executed by Miller and others, as principals, and
by Donnelly, as security.
Upon the trial of the issues, it appeared that several pay-
ments were indorsed ; besides which, Miller had paid to Mont-
gomery a certain sum of money, which he directed also to be
applied as a credit on that note. Montgomery gave a receipt
for the sum so paid, promising to enter the credit as directed,
but neglected to do so.
Subsequently, under an agreement between Miller and
1863.] Miller et al. v. Montgomery. 351
Statement of the case.
Montgomery, the amount for which the receipt was given,
and directed to be applied as a payment on the note, was
applied upon another debt which Miller, individually, owed
Montgomery.
The amounts indorsed as payments upon the note, together
with the amount for which the receipt was given, would have
been a full satisfaction of the debt sued for.
Montgomery knew the fact that Donnelly was only a secu-
rity upon the note.
The court was asked to instruct the jury on the part of the
defendants as follows :
1. If the jury believe, from the evidence, that the receipt
offered in evidence was by the plaintiff and defendant, Mil-
ler, to apply on the note in question, then that it was so applied,
and that such receipt satisfied in full the balance remaining
due on the note, then the plaintiff cannot recover even though
the jury believe that the defendant, Miller, afterwards agreed
that such receipt, or any part of it, should apply on any other
deal existing between Montgomery and Miller.
2. If the jury believe, from the evidence, that the note
was satisfied in full by payments and receipt, then they are
instructed' that any afterward arrangement made by Miller,
by which such payments were to be differently applied, and
the indebtedness of the note revived, is not binding on the
defendant, Donnelly, if the jury further believe that the
plaintiff knew that Donnelly signed the note as security,
unless the jury believe that Miller had authority for the other
defendants to so change the application of the payments if any
were made.
The Circuit Court refused each of these instructions, and
the defendants excepted.
The jury found a verdict for the plaintiff; a motion for .a
new trial was overruled, the defendants also excepting to the
ruling of the court in respect thereof ; and a judgment was
entered against the defendants, from which they prayed this
appeal.
It is alleged that the Circuit Court erred in refusing to give
each of the several instructions asked by defendants ; and in
overruling the motion for a new trial.
352 Miller et al. v. Montgomery. [April T.
Opinion of the Court.
Messrs. Gloves, Cook & Campbell, for the appellants.
Mr. L. S. Chubch, for the appellee.
Mr. Chief Justice Caton delivered the opinion of the Court :
The error in this case is manifest, upon a mere statement of
the facts. The note was executed to the plaintiff by Don-
nelly, as surety, and the other defendants, as principals ; the
plaintiff refusing to take the note, unless Donnelly signed it
as surety. Subsequently, Miller, one of the principals, paid
the plaintiff one hundred and seventy-five dollars, with
express instructions that it should be applied on this note ;
which the plaintiff agreed to, and promised to indorse it on
the note, but neglected to do so. Afterwards, by an arrange-
ment between the plaintiff and Miller, apart of this payment,
at least, was applied to other indebtedness due from the prin-
cipals in the note to Montgomery, and the court below, by its
instructions, allowed this payment to be so diverted, and a
recovery to be had against the surety. This was manifestly
erroneous. When the payment was once applied to the note,
it was that instant extinguished to that extent, and could
never afterwards be revived against any of the parties to the
note without their consent. Miller might as well have signed
a new note for Donnelly, as to revive his obligation upon an
old one, which had been, in fact, paid. No question of a
honajlde holder arises in this case. The plaintiff was cogni-
zant of all the facts, and it was a fraud upon Donnelly to
attempt, by a subsequent agreement of Miller, to revive the
extinguished liability of the surety. The instructions should
have been given.
The judgment is reversed, and the cause remanded.
Judgment reversed.
1863.1 Myees et al. v. Walker. 353
Syllabus.
Henry Myers et at
v.
Charles Walker.
1. Change of venue — need not be granted when the reason ceases.
When the reasons for a change of venue cease to exist, the necessity and the
right to a change also cease.
2. So, where an application was made for a change of venue in a cause,
upon the ground that the judge then presiding was prejudiced against the
party so that he could not obtain a fair trial, and the application was de-
nied, the cause was tried in the same court at a subsequent term, before
another judge to whom no objection was made. It was held there was no
force in the objection that the application had been denied.
3. Witness — competency — interest. Where a surviving partner insti-
tutes a suit in regard to the partnership concerns, the administrator of the
deceased partner is not a competent witness on behalf of the plaintiff, al-
though he may release all his interest in the suit, because if the party so
calling him should be defeated he would have a right to pay the costs out of
the partnership effects, and thus diminish the assets which would come to
the hands of the witness as administrator. To that extent he would have
an interest in the result of the suit, and therefore incompetent, notwith-
standing his release.
4. Contracts. Where one employs a person to purchase corn for him,
and advances money for that purpose, he cannot recover back the money
advanced and also the value of the corn purchased with such money.
5. It is none the less a compliance by the party thus employed, with hia
contract to purchase corn for his employer, because he did not pay for the
corn with the identical money advanced to him for the purpose.
6. Bailee — degree of care required. A warehouseman who receives the
grain of another for the purpose of storage, is only bound to ordinary care
in its preservation.
7. But where a warehouseman purchases grain for another, and has it in
store, he takes the risk of any loss that may occur, until such delivery as
will pass the title to the party for whom the grain was bought.
8. Warehouseman's receipt — construction. A warehouseman "re-
ceived in store from Walker & Kellogg, and subject to their order, and free
of all charges on board their boats, or any boats they may send for the same,
thirty thousand bushels shelled corn." Held, that the warehouseman was
bound to store the corn free of charge, only for a reasonable time. And if
boats were not sent for the corn within such time, he would be entitled to
compensation for storage, and for any extra labor in delivery occasioned by
the delay.
45— 31st III.
354 Myers et al. v. Walker. [April 1
Statement of the case.
0. Notice — when required. The right to storage in such case would,
however, it seems, only accrue after notice to the owner to remove the corn.
10. Commission for buying — how forfeited. Where a party purchases
grain for another under an agreement that he is to receive a certain com
mission therefor, he is not entitled to the commission for making the pur
chase, if he fails to deliver the grain or appropriates it to his own use.
11. The jury, not the court, decide facts. It is erroneous to instruct a
jury to disregard certain items in an account, in regard to which evidence
has been given ; it is the province of the jury, not the court, to decide
whether such items have been proven.
Writ of Error to the Circuit Court of Peoria county ; the
Hon. A. L. Merriman, Judge, presiding.
This was an action of assumpsit instituted in the Circuit
Court in 1858, by Charles Walker, as surviving partner of
Walker & Kellogg, against Henry Myers and Stanley J.
Dawson, partners under the name and style of H. Myers &
Co.
The declaration contained the common counts for goods, etc.,
sold and delivered ; goods sold ; work and materials ; money
loaned ; money paid ; money had and received ; account
stated ; interest ; and corn, wheat and grain delivered to the
defendants, and by them sold and disposed of tor their own
use and benefit.
The plaintiffs bill of particulars embraced, upon the debit
side, items for cash advanced on corn ; sundry drafts drawn
by defendants, and paid by Walker & Kellogg; lumber;
gunny sacks, and interest. Upon the credit side were items
of corn, amounting to ten thousand bushels, purchased by
the defendants for Walker & Kellogg; commissions for the
same ; gunny sacks returned, etc., leaving a balance claimed
by the plaintiff, of $6,685.87.
The defendants pleaded the general issue, with notice of
set-off. The bill of particulars filed by the defendants under
their notice of set-off, contained items of corn ; storage of
the same; sacking and hauling; commissions; labor on
boats ; twine, etc. ; amounting in the aggregate, as claimed, to
$12,822.87.
The cause was, originally, tried in the Circuit Court, in
1863.] Myers et al. v. Walker. 355
Statement of the case.
1859, the trial resulting in a judgment for the plaintiff; that
judgment was reversed in this court at the April term, 1860,
and remanded for a new trial, 24111. 133. At the December
term, 1860, of the Circuit Court, the judgment of the Supreme
Co art was presented, and the cause again placed upon the
docket for further proceedings.
At the March term, 1861, the defendants made an applica-
tion for a change of venue, alleging that they could not obtain
a fair and impartial trial in that court, on account that the
judge then presiding was prejudiced against them. This ap-
plication was denied ; and the cause being continued, came on
for trial at the November term, 1861, before the Hon. A. L.
Merriman, Judge, who was not presiding at the term at
which the application for a change of venue was made.
The controversy is mainly based upon alleged breaches of
contract in regard to the matters spoken of in the following
instruments of writing;
44 Peoria, February 13, 1854.
" This certifies, that we have agreed to pay H. Myers & Co.
four cents per bushel of 56 lbs., for purchasing and delivering
corn on board our boats the coming season, they purchasing
the same at as low a price as possible ; and if, in our opinion,
the price should be too high, we are to notify them, and they
are to stop buying. It is understood we are to keep them
supplied with money as needed for paying for same, and they
are to deliver us the same quantity of corn their account
shows as being bought for us, and charged to our account. It
is understood they are to purchase for us alone, and not for
others. It is understood the above refers to corn bought at
their warehouse at Spring Lake, upon the Illinois river.
WALKER & KELLOGG."
" Peoria, February 13, 1854.
" This certifies, that we have this day agreed to purchase
corn at our warehouse in Spring Lake, the coming season, for
Walker & Kellogg, and said corn, when purchased, is to be
subject to their order ; also, we are to be governed by them
as to price to be paid from time to time, and are to receive
four cents per bushel for buying, storing and delivering on
;56 Myers et al. v. Walker. [April T.
Statement of the case.
board their boats, we making up to them the same quantity
reported as bought for them.
H. MYERS & CO."
" This certifies, that we have sold and agreed to Walker &
Kellogg, on board their boats, during the coming months of
April and May, as they may call for the same, ten thousand bush-
els of sound merchantable corn, of 56 lbs. to the bushel, for
which they are to pay us thirty-six cents per bushel. It is
understood said corn is now at our warehouse at Spring Lake,
upon the Illinois river, and that they are to take it from that
point, we putting it on board free of charge to them ; and we
hereby acknowledge the receipt of one thousand dollars upon
said corn, in part payment for the same.
u Dated Peokia, February 13, 1854. H. MYERS & CO."
" Received in store from Walker & Kellogg, and subject to
their order, and free of all charges on board their boats, or any
boats they may send for the same, thirty thousand bushels
shelled corn in good order and condition, said corn being
stored at the warehouse at Spring Lake, Tazewell county, and
occupied by Moore, Pratt & Co., in connection with whom
the corn has been bought for Walker & Kellogg, and with
their funds.
" Peokia, April 15, 1854. H. MYERS & CO."
During the trial the plaintiff called Henry M. Kellogg to
testify on his behalf, who, after being sworn, was examined
by the counsel for the defendants, and upon that examination
the witness said :
" I am a brother of William Kellogg, the deceased partner
of Walker & Kellogg. Said William Kellogg is now dead,
and I am his administrator. He never was married, and left
no children or descendants of children. The firm of Walker
& Kellogg's debts would not exceed one thousand dollars, but
no assets and no collections made."
Defendants then objected to said witness being allowed to
testify, because he was administrator of William Kellogg, and
one of his heirs at law, and would receive a part of whatevar
wag given by verdict to the plaintiff.
1863.] Myees et ah. v. Walkeb. 357
Statement of the case.
Thereupon, the plaintiff produced the following release:
"Charles Walker)
vs. > In the Circuit Court of Peoria county — In assumpsit.
Henry Myers et al. )
" For and in consideration of the sum of one dollar to me
in hand paid by Charles Walker, the plaintiff above named,
I do hereby release and assign to the said Charles Walker
aforesaid, all interest, right, title, claim, property and demand
which I may have, either as heir or administrator of William
Kellogg, deceased, or otherwise howsoever, in or to any part or
portion of the money or claim sought to be enforced or recov-
ered in this suit. In witness whereof, I have hereunto set my
hand and seal at Peoria, this 7th day of December, 1861.
HENRY M. KELLOGG, [seal.]"
But defendants still objected to said Kellogg being allowed
to testify, because if the costs should be adjudged against the
plaintiff, it would diminish the fund in which witness had an
interest, as heir of William Kellogg, and because the witness
had no right to give any such release ; but the court permitted
the witness to testify, to which the defendants at the time
excepted.
The witness Kellogg testified in reference to an advance of
money by Walker & Kellogg to the defendants, to the amount
of $11,783.94, after deducting an old account and for sacks
returned ; and that the defendant, Dawson, admitted the debit
side of the plaintiff's account to be correct, except the item
of interest.
The defendants introduced evidence in reference to the
quantity of corn delivered by them to Walker & Kellogg ;
and the neglect of the latter to take away corn from the ware-
house of the defendants within a reasonable time, by reason
of which the defendants claimed that they were put to extra
expense in sacking and hauling a portion of the corn to a
point where it could be shipped, and some of it became heated
and damaged. The defendants also claimed that they were
entitled to storage upon the corn remaining more than a
reasonable time.
Among others, the following instructions were asked on the
part of the defendants :
358 Myers et al. v. Walker. [April T.
Statement of the case.
1. The jury are instructed that the plaintiffs in this cause
are not entitled to recover for money they advanced to pur-
chase the corn with, and for the corn also.
Which instruction the court refused to give, but struck out
the word also, and added the following qualification : " pur-
chased with such money," and gave it so qualified ; to which
refusal to give said instruction as originally written, and quali-
fying the same, the defendants at the time excepted.
5. There is no time specified in the receipt dated April
15, 1854, when Walker & Kellogg were to send for the corn,
and in that case, Walker & Kellogg would be required to
send for the corn, and in a reasonable time ; and if Walker
& Kellogg failed or neglected to send for the corn in a reason-
able time ; and if the jury further believe, from the evidence,
that by reason of such failure and neglect of Walker &
Kellogg to send for and take away the corn in a reasonable
time, a part of the corn was lost or spoiled, then, unless the
defendants were guilty of some negligence, Walker & Kel-
logg must sustain such loss and damage, and the jury skould
not allow the plaintiffs for any corn so lost or spoiled.
Which instruction the court refused to give, but added the
following qualification : " Unless the jury believe, from the
evidence, that the time for the delivery of such corn was
changed by some other contract between said parties, or that
the corn specified in this receipt was subject to the terms of
the contract of February 13, 1854 ;" and gave it so qualified.
6. If the jury believe, from the evidence, that the defend-
ants had on hand in the warehouse of Moore, Pratt & Co.,
the 30,000 bushels of corn specified in the receipt dated April
15, 1854, and were then ready to deliver the same at that
date ; and if the jury further believe, from the evidence, that
the plaintiffs did not, within a reasonable time, call for and
take away the corn, and that by reason of the failure of the
plaintiffs to remove the corn in a reasonable time, the defend-
ants were subjected to and did pay for the sacking, hauling,
and for storage on the corn, in order to take care of and ship
the corn, then the jury should allow the defendants a reason-
able compensation for such sacking, hauling, and extra storage.
1863.] Myers et al. v. Walker. 359
Statement of the case.
Which instruction the court refused to give, but added the
following qualification : " Unless the jury further believe,
from the evidence, that the time for the delivery of such corn
was changed by some other contract between said parties, or
that the corn specified in this receipt was subject to the con-
tract of February 13, 1854 ; " and gave it so qualified.
13. The court instructs the jury, that by the terms of the
receipt given by the defendants to the plaintiffs for the thirty
thousand bushels of corn, dated April 15. 1854, the defend-
ants became the bailees of the corn for the plaintiffs, and were
only bound to take reasonable care of the same, and have the
same ready for delivery for a reasonable time ; and if the
game was injured without the negligence of the defendants,
the defendants are not responsible for such injury, and had a
right to charge storage for any neglect to carry it away after
a reasonable time, if the jury believe, from the evidence, that
the plaintiffs failed to take it away in a reasonable time, and
were notified to do so.
14. The court instructs the jury, that under the pleadings
in this case, the plaintiffs are not entitled to recover damages
for any failure or refusal by the defendants to deliver any corn
purchased.
15. The court instructs the jury, that the defendants are
entitled to have credit for the corn at the price they paid for
it at Spring Lake, and if the corn fell in price after it was
bought, the plaintiffs would have to sustain such loss.
The court refused to give the 13th, 14th and 15th instruc-
tions, and exception was taken thereto, and to the ruling of
the court in adding the qualifications to the 1st, 5th and 6th
instructions asked by the defendants.
With other instructions the following was given for the
plaintiff :
3. If the jury believe, from the evidence, that the defend-
ants admitted the correctness of the plaintiff's account given
in evidence, and that the account which the defendants fur-
nished of their claim in 1858 is correct, they will find for the
plaintiff the difference between the two accounts ; and if they
believe, from the evidence, that the season mentioned in the
860 Myers et al. v. Walker. [April T.
Opinion of the Court.
contracts extended from the opening to the cuse of naviga-
tion in the spring and fall, they will find for the plaintiff the
difference between the two accounts, deducting from defend-
ants' account all charges except for commission, sacks, meat,
twine, and labor on boats, and ice.
Excepted to by defendants.
The jury returned a verdict for the plaintiff for the sum
of $3,323,523.
A motion for a new trial being overruled, a judgment was
entered against the defendants, who thereupon sued out this
writ of error.
The assignment of errors questions the rulings of the court
below,
1. In refusing the application for a change of venue ;
2. In allowing the witness, Kellogg, to testify ;
3. In refusing to give the 13th, 14th and 15th instructions
asked by defendants ;
4. In refusing to give the 1st, 5th and 6th instructions
asked by defendants, as they were originally written, and in
qualifying the same ; and
5. In giving the 3rd instruction for the plaintiff.
Messrs. Roberts & Ireland, for the plaintiffs in error.
Mr. Norman H. Purple, for the defendant in error.
Mr. Justice Walker delivered the opinion of the Court :
The application for a change of venue, was based upon an
affidavit, that the party feared that he could not obtain a fair
trial before the judge then presiding. And whilst the venue
was not changed to another circuit, a trial was had before a
different judge against whom there was no complaint. This
practically accomplished all that was sought by the application
for a change of venue. When the reasons for a change of
venue ceased to exist, the necessity and the right to a change
of venue also ceased. The party obtained a trial before
1863.] Myers et al. v. Walker. 361
Opinion of the Court.
another judge, against whom he made no objection, and he
has sustained no wrong by a failure to transfer the cause to
a different circuit. We perceive no force in this objection.
It is insisted that witness Kellogg, was incompetent to
testify in the case. He was the brother, the administrator
and heir of the deceased partner of defendant in error, with
whom the matters in dispute in this case originated. It is,
however, insisted he was rendered competent by a release
executed by himself to defendant in error of all of his inter-
est, as administrator, in the subject-matter of this suit. Did
this remove his interest, and restore his competency ? This
release would, no doubt, prevent him from recovering from
defendant in error any portion of any recovery which might
be had in this suit, whether claimed as heir, or as administra-
tor, of the estate of his brother. If the defendant in error,
however, was unsuccessful in the suit, he would, undeniably,
have the right to pay the costs, out of the assets of the late
firm, and on a settlement with the administrator of his de-
ceased partner, he would have a right to a credit for the
amount. The fund would thus be diminished to that extent.
On a final settlement, the witness wouid be liable to receive
less than if the suit terminated m favor of defendant in error.
A failure to recover would, therefore, reduce the fund in the
distribution of which the witness has a right to participate.
This witness, therefore, had an interest in the recovery by
defendant in error to the extent of his liability to account for
the costs of this suit. This interest, it seems to us, is as direct
as if he were a party to the record as far as the liability for
costs is involved. It is more direct than the liability of a
security for cost, and yet he is not competent. In neither
case is the party liable to have a judgment rendered against
them in the suit, but in both they are ultimately liable.
Whether plaintiffs in error had money of defendant in error
in their hands, unexpended, after deducting all proper credits,
was a question for the determination of the jury. We deem
it unnecessary to discuss the weight of evidence on this ques-
tion, as that will be the province of the jury on a future trial
of the case.
46-— 31st III.
362 Myers et al. v. Walker. [April T
Opinion of the Court.
It is urged that the court below erred in modifying de-
fendants' first instruction. But no objection is perceived to
the instructions as given. It informed the jury that plaintiff
could not recover back money paid out in the purchase of
corn for plaintiff, and also the value of the corn thus purchased.
If all the money furnished by plaintiff was expended in the
purchase of corn, under the contract, and it had been deliv-
ered or stored ready for delivery, according to the terms of
the contract, then all liability of the defendant ceased. If,
however, he had failed to purchase the corn, to the extent of
the funds furnished, or had purchased the corn and failed to
deliver, or store it, according to the agreement, then he was
liable for the portion not purchased or delivered to plaintiff
in store, or otherwise, if defendant furnished the full amount
of corn, it could make no difference whether it was purchased
with the identical, or other money. This instruction does not
contravene this principle.
The court below modified defendants' fifth instruction,
which is also assigned for error. As it was drawn, and before
it was modified, it asserted that as defendants' receipt for
plaintiff's corn specifies no time within which Walker &
Kellogg were to send for the corn, they were bound to remove
it in a reasonable time, and if loss resulted from a failure to
do so, the plaintiff must sustain the loss, unless defendants
were guilty of negligence. The liability of defendants, as
bailees, whether the purchase was of corn already in store, or
was of corn received in store, as the receipt specifies that it is
to be stored and put aboard of boats free of charge, was that
they should use ordinary care and diligence in its preserva-
tion. The qualification was no doubt introduced to make a
distinction, that if the corn was purchased under the agree-
ment of the 13th of February, and had not been delivered so
as to pass the title to plaintiff, then the defendants took the
risk of any loss which might occur. The receipt states that
defendants had received plaintiff's corn in store, and that corn
required no further delivery to pass the title, and defendants,
as to it, were only liable for ordinary diligence in its preserva-
tion.
1863.] Myers et al. v. Walker. 363
Opinion of the Court.
The sixth instruction asked by defendants asserts that under
the receipt for the thirty thousand bushels of corn in store,
plaintiff was bound to send for, and remove it in a reason-
able time, and if, by failing to do so, the defendants were
subjected to additional expense in sacking, hauling and
storage, defendants should be allowed a reasonable compen-
sation therefor. No objection is perceived to this instruction,
unless it be that it should have been modified so as only to
give the right to storage after notice to remove the corn.
Defendants were only bound to store the corn for a reasonable
time free of charge. And only being bound to deliver it on
board of the boats within that time, and if, by failing to so
remove, it produced any additional expense, defendants were
entitled to compensation for the increased labor and expense
of delivery. It was so held in this case when previously in
this court. 24 111. 133.
The principles already announced render a discussion of
defendants' thirteenth instruction unnecessary. Their four-
teenth instruction is too general in its terms. The defendants
were only entitled to be allowed for corn delivered to plaintiff
in store or otherwise, at the prices authorized to be paid. If
they paid higher prices than was authorized, they must sus-
tain the loss of the excess. The defendants' fifteenth instruc-
tion is also too general. If defendants purchased corn for
the plaintiff under the contract, and failed to deliver it, or
appropriated it to their own use, they had no right to the com-
mission agreed to be paid for its purchase.
Plaintiff's third instruction directed the jury to disregard
all charges in defendants' account, " except for commissions,
sacks, meat, twine, labor on boats, and ice." Now, there
were charges in his account for large quantities of corn,
delivered at various times, and there was evidence tending
to establish their correctness. These items, by this instruc-
tion, were improperly taken from the consideration of the
jury. It was the province of the jury, and not the court,
to determine what charges were proved. This instruction
was therefore improperly given.
The judgment of the court below must be reversed, and
the cause remanded. Judgment reversed.
364: Wajrdwell v. McDowell et al. [April T.
Syllabus.
Obrln Wardwell
V,
Jake McDowell et al.
1. Probate court — not a court of record. The probate court, ac It
existed under the act of March 4, 1837, was not a court of record.
2. Parol evidence — ministerial acts. Proceedings before the probate
court under that act, in reference to the proof of the execution of a will,
refusal of part of the executors named, to accept and qualify, and grant-
ing letters testamentary to one who did accept, were of a ministerial char-
acter, and as such can be proved by other than record evidence.
3. All ministerial acts sue in pais — open to the country — and to be
established by parol proof.
4. So, where three executors were appointed by will, giving them power
to sell real estate of the testator, and only one of them qualified, who sold
and conveyed the lands, the other two refusing to accept the trust and
qualify, it was held such refusal might be proven by parol evidence.
5. And it seems, in such case, it might be inferred from the neglect of
one or more of several executors appointed in a will, to join in the execu
tion of the trust, that they had refused to accept it and to qualify.
6. Executors — when a part refuse to qualify — power of those who do.
At the common law, a naked power which is given to several, such as that
conferred upon executors by will, to sell and convey the real estate of the
testator, not coupled with any interest in the estate, can only be exercised
by the joint action of the donees of the power.
7. The power does not survive, at common law, in case of the death of
one of the donees.
8. So in the execution of a will, when one named with others as execu
tor, refused to accept and qualify, the others could not execute the will.
9. Same — powers under act Henry VIII, where a part only of several
executors qualify. To obviate this difficulty, the act of 21 Henry VIII, ch.
4, was passed, and is in force in this State, which provides that the quali-
fied and acting executor may execute the will when the others " do refuse
to take upon him or them the administration and charge of the same tes-
tament and last will wherein they be so named as executors."
10. And where power is given in the will to several executors to sell
real estate, whether the lands are ordered to be sold peremptorily, or the
executors may exercise a discretion in selling, makes no difference in the
application of the act cited. In either case the executor who qualifies may
act the others refusing to do so.
1863.] Wardwell v. McDowell et al. 365
Statement of the case.
11. Chancery may compel executor to exercise discretionary power.
Whatever an executor may be compelled to do by a court of chancery, he
may do voluntarily.
12. So where a testator gave his executors discretionary power to sell
lands, and no purpose is expressed for the application of the proceeds, if
it be necessary to resort to the lands to pay debts, a court of chancery may
compel such of the executors appointed, as may qualify, to exercise the
power of sale, and to apply so much of the proceeds as is necessary, to pay-
ment of the debts. Then the executor may do the same voluntarily.
13. Executors — power to sell not affected by misapplication of proceeds.
The manner of the application of the proceeds by the executor, cannot
affect the power to sell ; the purchaser is not bound to see to their application.
14. Powers — naked powers, and powers coupled with an interest or trust.
Where power is given to executors, by will, to sell real estate, without
expressing any purpose in the disposition of the proceeds of the sale, the
power is regarded a mere naked power, and not a power coupled with an
interest or trust.
Writ of Error to the Circuit Court of La Salle county ;
the Hon. Madison E. Hollister, Judge, presiding.
This was an action of ejectment instituted in the court
below by the defendants in error against the plaintiff in
error, in September, 1857, to recover the possession of an
undivided portion of certain premises in La Salle county.
The facts of the case are sufficiently stated in the opinion of
the court. The trial below resulted in a finding and judg-
ment in favor of the plaintiffs, and the defendant thereupon
sued out this writ of error.
The principal questions presented upon the record are,
First, whether the fact that one or more of several execu-
tors appointed in a will, refuse to accept the trust and qualify,
can be proven by parol evidence ; and second, whether one
of several executors who qualifies, the others refusing, can
execute the powers conferred by the will upon all ; and herein
whether a distinction would be made in such case, where the
powers granted were discretionary in their character.
Messrs. Glover, Cook & Campbell, for the plaintiff ii>
error.
366 Wardwell v. McDowell et al. [April T.
Briefs of Counsel.
The act of 21 Henry VIII, ch. 4, is in force in this State,
and provides that one of several executors who qualifies, the
others refusing, may execute a power of sale conferred upon
all. Olinefelter v. Ayres, 16 111. 332.
Whether the power conferred be a mere naked power tc
sell, or a power coupled with an interest, it may be executed
by such as qualify, the others refusing. Cormick v. Michael,
4 Sandf. 401 ; Solomon v. Wixom, 27 Conn. 520.
If it be a power coupled with an interest, the survivor, or
acting executor, may execute it. Franklin v. Osgood, 14
Johns. 553; 1 Gaines' Gas. 15; 3 Atk. 714; 2 P. Wms. 102;
10 Peters, 565 ; Pahlman v. Smith, 23 111. 449.
The rule applies, although the power to be executed is of a
discretionary character. 15 Gratt. 11 ; Clay v. Hart, 7 Dana,
2; McDowell v. Gray, 29 Penn. 211; Taylor v. Morris, 1
Comstock, 341 ; Zebach v. Smith, 3 Binney, 69.
Mr. E. S. Holbeook, for the defendants in error, contended
that the act of 21 Henry VIII, ch. 4, had no application
where the power to be exercised by the executors was of
a discretionary character, but only where the act was required
to be done peremptorily; and cited —
Sinclair v. Jackson, 8 Cow. It. 582 ; Poivell v. Tuttle, 3 Corns.
339 ; Pearson v. Jameson, 1 McLean, 197 ; Perry v. Lyman, 22
Barb. S. C. R. 22 ; 85 Com. Law Rep. 403 ; 4 John. Ch. R. 768 ;
Williams v. Murray's Adm'r, Ver. 197 ; Clay v. Craig et ah,
7 Dana, 9; 3 J. J. Marshall, 248; Bartlett v. Smith, 24 Miss.
395 ; Shelton v. Homer, 5 Met. 362 ; 2 John. Ch. Rep. 22 ; Hill on
Trustees, 472, 478, 501 ; Wooldridge9s Heirs v. Watkins, Eafr,
3 Bibb, 350 ; Jamieson v. Smith, Ex'r, 4 Bibb, 307 ; Green v.
Miller, 6 John. R. 41 ; Bull v. Bull, 3 Day, 284 ; Floyd's Heirs
v. Johnson, 2 Littell, 115 ; Schoenberger's Ex'r v. Lancaster
Savings Institution, 28 Penn. St. Rep. 465 ; Beverly v. Peters,
10 Pet. Rep. 534 ; Sharpstein v. Tillon, 3 Cow. 654 ; Townsend
v. Wilson, 1 Barn. & Aid. 612; Cole v. Wade, 16 Ves. 19; Lord
v. Lord, 85 C. Law R. 403 ; Toler v. Toler, 2 Pat. & Heath,
71 ; Evans v. Landon, 1 Gil. 308 ; Smith et al. v. Hileman, 323 ;
1 Bl. Com. 501 ; 4 Kent, 327, 333, 504.
1863.] Wardwell v. McDowell et al. 367
Opinion of the Court.
Mr. Justice Breese delivered the opinion of the Court:
This was an action of ejectment brought in the Circuit
Court of La Salle county, to recover the possession of a cer-
tain tract of land there situate. A verdict and judgment was
rendered for the plaintiffs, and the case brought here by writ
of error.
The following facts were agreed : Both parties claim title
from Samuel Lapsley, deceased, who died in La Salle on the
21st of June, 1839, seized in fee of the premises in question.
The plaintiffs are the heirs at law of Lapsley, and, as such, had
Lapsley died intestate, would have been entitled to -£fo part
of the premises described in the declaration. The defendant
was in possession of the premises, claiming title thereto, at the
time of the commencement of the suit.
Lapsley, prior to his death, and while of sound mind and
memory, executed, published and declared his last will and
testament, by which he directed that all his debts and funeral
effects should be paid so soon after his decease as possible,
out of the first moneys that should come into the hands of his
executors from any portion of his estate, real or personal.
He then bequeathed to certain persons named, one thousand
dollars each, to be paid to them respectively, when they
became of age, or married ; the same to be kept out to inter-
est at the discretion of his executors, and the interest accruing
thereon, to be applied to their education and maintenance
respectively, until their said respective ages or marriages, etc.
He also bequeathed to Julius C. Coe, one thousand dollars,
as well for the respect he bore toward him, as for his kindness
and attention to the testator during his sickness. He also
bequeathed to the children of his sister, one thousand dollars
each, to be paid as they became of age or married, and to be
put out to interest at the discretion of his executors, and the
interest to be applied to their education and maintenance.
Then follows this clause : " I direct my executors to sell and
dispose of, as soon as may be, after my decease, all my per-
sonal property for good current money ; and that all the real
868 Wardwell v. McDowell et al. [April T.
Opinion of the Court.
estate of which I die seized or possessed, shall be sold by my
executors at any time when they may think proper, for its
reasonable value, for like current money, or on such credit as
they may think proper ; and the amount thereof secured in
such manner as is usual in like cases to insure the full and
punctual payment thereof; and to effectuate this my inten-
tion, I hereby vest in my executors full power and authority
to dispose of my real estate in fee simple or for a term of
years, or otherwise, in as full and as large a manner in every
respect, as I could myself do if living. And I do hereby
make and ordain my friends, Burton Ayres, John Fanghender
and William Waddingham, executors of this my last will and
testament."
The will was duly proved and recorded according to law on
the 28th of June, 1839.
Ayres and Waddingham, two of the persons named in the
will as executors, never took out letters testamentary ; they
were issued to John Faughender alone, who alone qualified.
Ayres and Waddingham were both living at the time the
letters testamentary were issued to Fanghender, and at the
time of the conveyance of the land to defendant's grantor,
and were in no wise disqualified from acting as executors
of the will.
On the second of October, 1841, after Faughender had
qualified, and while he held the office of executor, he executed,
acknowledged and delivered to John Swinson and Mary
Swinson a deed for the premises in controversy.
The defendant showed, by regular deeds, that he was pos-
sessed of all the title the Swinsons obtained by their deed.
The deed to the Swinsons is a warranty deed, and purports
to have been made by Faughender, as executor of the last
will and testament of Samuel Lapsley, deceased.
It was proved on the trial, that Ayres and Waddingham,
w.ith Faughender, took the will to the probate court, and it
was there opened, proved and read, whereupon the justice
inquired of them, if they would act as executors. Faughen-
der agreed to act, but Ayres and Waddingham absolutely
refused. Neither of them ever withdrew their refusal, and
1863.] Waedwkll v. McDowell et al. 309
Opinion of the Court.
never qualified as executors. Waddingham lived in St.
Louis, and left for that place soon after the will was proved,
and was never afterwards in La Salle county.
The only questions presented for our consideration, are, 1,
can the refusal to act, of a person appointed executor, be
proved in any other way than by matter of record \ 2, had
the executor, under this will, to whom was granted letters
testamentary, and who qualified as such, power to convey the
real estate of his testator ?
The first question has been fully considered and decided
by this court, in the case of Ayres v. Clinefelter, 20 111. 465,
on a case arising under this will. All the proceedings by the
probate court, in reference to the proof of the execution of
this will, refusal of the executors named, to accept and quality,
and granting letters testamentary to one who did accept,
were all proceedings before a court not a court of record. See
act of March 4, 1837, to provide for the election of probate
justices of the peace. Session Laws, 1837, page 176. These
acts and proceedings are declared by this statute, to be minis-
terial acts, and being ministerial, can be proved by other than
record evidence. In fact, there could be no record made in
that court, for it was not a court of record. Its &cts and pro-
ceedings, like those of an ordinary justice of the peace, were, as
we said in that case, open to the country — in jpais — and all
the facts and circumstances attending the granting of the
letters testamentary to one of the executors named, should
have been admitted in evidence. That included, of course,
the fact of the refusal, of the others named as executors, to
accept and qualify, and that was the only point made and
argued before us, at that time. The question was, as to the
kind of evidence necessary to prove a refusal. The court, when
the case was before it, at a previous term (16 111. 332), had
decided, that the entry, by the probate justice on his docket,
that Ayres and Waddingham had failed to qualify, did not
come up to the demand of the statute, 21 Henry VIII, ch. 4,
which they were then discussing, which required a refusal to
be shown — that some unequivocal manifestation by the execu-
tors named, must be given, in order to divest themselves of
47— 31st III.
370 Wardwell v. McDowell et al. [April T.
Opinion of the Court.
the rights, duties and powers conferred, not by the law, but
by the act and will of the testator. The court cite English
and American authorities, going to show, that record evidence
of refusal or renunciation was alone competent to establish
the fact, but do not so decide, nor did the court refer to the
peculiar character of the court in which the proceedings
under this will were had ; that it was not a court of record,
consequently, a refusal, or renunciation, could not be entered
and recorded in court, in conformity with the decision in
Herron v. Hqffner et al., 3 Rawle (Penn.) 396 ; Stebbins v.
Zathrqp, 4 Pick. 43, and the case cited from 5 English Eccle-
siastical R. 266, Long et al. v. Symes et al. The court say,
" whatever the character of proof, it should at least be satis-
factory and conclusive, and more especially, in cases of naked
powers, where greater strictness is required, than when the
power is coupled with an interest or trust." It will be seen,
the kind of proof requisite to establish a refusal was not
prescribed, but of whatever character it might be, it should
be satisfactory and conclusive. A refusal to accept and
qualify, must be shown ; a failure so to do, however proved,
does not meet the requirements of the statute of 21 Henry
VIII, and that was all that was decided on that point.
In the same case, in 20 111. 465, the plaintiff offered to
prove, in the Circuit Court, by parol, a distinct and unquali-
lied refusal of the other executors named in the will, to accept
and qualify, which proof the court rejected. It was to that
point alone, as we remember, our attention was directed, and
it seemed a very plain proposition, as the court before which
the proceedings under the will were had, was not a court of
record, and all its acts, declared by the law creating it, to be
ministerial acts, that they could be proved, as any other
ministerial acts, and accordingly, we held, that it was com-
petent to prove by other than record evidence, or by a citation
issued to them, or by a written renunciation, that Ay res and
Waddingham had refused to accept and qualify as executors.
It may be, as the counsel for the defendants in error thinks,
an " unfortunate decision " — it was so, for his client ; but it
does not appear to us, on mature consideration, and furthei
1863.] Waedwell v. McDowell et ah 371
Opinion of the Court.
reflection, that any other correct decision on that point could
have been made, on the principle that all ministerial acts are
in pais — open to the country — and to be established by
parol proof.
The statute of New York provides for the neglect as well
as the refusal of one or more of the executors to take upon
them the execution of a will. In the case of Sharp v. Pratt,
15 Wend. 612, it was contended, to authorize a less number
than the whole to execute a power to sell lands, there should
be a renunciation from the others. The court said, the phrase-
ology of the statute will justify a more liberal construction.
It is not necessary there should be a refusal to serve ; a neg-
lect answers the same purpose, and confers the authority upon
those who act. It was sufficient therefore, in this case, to
show that the two executors who did not join in the deed, neg-
lected to take upon them the execution of the will. The tes-
timony clearly showed such neglect.
The case does not show there was any testimony other than
parol, of this neglect.
In Hoseborm v. Mosher, 2 Penio, 69, the court say, if Mr.
Yan Yechten had renounced before the surrogate, or if, being
cited, he had neglected to appear and take upon himself the
execution of the will, and his default had been recorded by the
surrogate, there would then have been no difficulty in the case.
But the court asks, is there no other way in which it may be
shown that he refused or neglected to act as an executor? In
England that seems to be an open question. I do not find
that it has been decided either one wTay or the other. It has
been held by two highly respectable courts in sister States,
that the refusal need not be by deed nor by matter of record ;
but that it may be proved like other matters in pais, by any
evidence which has a legal tendency to establish the fact.
Presumptions may be indulged ; and the declarations of the
executors who did not join in the sale may be given in evi-
dence. Geddy v. Butler, 3 Munford (Ya.) 345 ; Nelson v.
Carrington, 4 id. 332 ; Den v. Sparks, 1 Dev. & Battle, Q$.
C.) 389, are the cases referred to, and they were decided on
the 21 Henry YIII, ch. 4, and it was then held, that the
372 Wardwell v. McDowell et al. [April T.
Opinion of the Court.
mere omission of the executor, for a considerable period, to
qualify and enter upon his trust, was sufficient prima facie
evidence of the refusal.
We have looked into these cases, and find they are correctly
cited. In 1 Devereux and Battle, the court say, when a man
confides to another the management of his estate after his
decease, the nature of the office calls for prompt action. The
duties arise immediately upon the death of the testator, and a
forbearance to enter upon the execution of them, when the
will is proved, is presumptive evidence of a refusal to accept the
charge of his testament. The forbearing to qualify is prima
facie evidence of refusal. But if he neither qualify nor act,
if he intermeddle not with the estate of the deceased, either
regularly or irregularly, then the evidence of refusal is full.
Geddy and Knox v. Butler and Wife, 3 Munf. 345, was a
ease determined under the statute 21 Hen. Till, ch. 4, and
the court then held, that the refusal to qualify and act as exec-
utors, may be found on proof of declaration in pais, or pre-
sumed from circumstances, without any renunciation of record.
The case in 4 Munford, refers to the case in third, and ap-
proves it. In Chanet v. Villeponteaux, 2 McCord (S. C.) 27,
it was held that the removal from the State was equivalent to
a renunciation of an executorship.
In the case before us, there is proof of an express refusal
to qualify and act, and made before the proper court. There
is no proof that either of them have ever intermeddled in the
affairs of the estate, but always disclaimed the right to do so,
and one of them, Waddingham, then and since a non-resident,
has not been in the county of La Salle since his declared refusal
to act, made before the probate justice.
We are satisfied, sufficient proof of a refusal, by Ayres and
' Waddingham, to qualify and act as executors, has been pro-
duced. Wo apprehension, such as the counsel for the defend-
ants in error seems to entertain, that titles to land derived
through an executor's sale may be jeoparded by the fleeting
and evanescent character of such proof, need be entertained,
for the reason, that the acts which are done as executors,
manifest, at the same time, by whom they are done, leaving
1863.] Wardwell-w. McDowell et al. 373
Opinion of the Court.
it to be inferred, under the doctrine of the cases cited, that
those named as executors who do not join in the acts, have
refused to accept the trust and qualify. Parties interested,
will always be vigilant enough to see that the deeds made,
are made by competent authority.
The remaining question, as to the power of the qualified
executor to sell and convey the land, has been so fully dis-
cussed by this court, in the case in 16 111. 329, ^o often
referred to, that but little, if anything, more remains to be
said.
At the common law, it is not doubted, that a naked power,
such as this has been decided to be, not coupled with any
interest in the thing or estate, could only be exercised by the
joint action of the donees of the power. The power does
not survive in case of the death of one of the donees. 1
Sugden on Powers, 129, et seq. So in the execution of a
will, when one named, with others, as executor, refused to
accept and qualify, the others could not execute the will. To
obviate this difficulty, the act of 21 Henry VIII, ch. 4, was
passed, which provides, in substance, that the qualified and
acting executor may sell when the others " do refuse to take
upon him or them the administration and charge of the same
testament and last will, wherein they be so named as execu-
tors." See statute, 3 vol. Stat, at Large, 59. This statute is
in force in this State, as this court has decided. But the
counsel for defendants in error insists that this statute applies
only to sales where the duty to sell is imperative, and not
where it is discretion ary. He insists that by the terms of
this will, the executors had a discretion to sell or not, as they
might deem best, and having a discretion they must exercise
it jointly. That the testator must have had in view the value
and importance of the joint judgment in the disposal of his
estate, and he cannot be presumed to have intended a disposal
of his estate by one of his appointees only. In answer to
this it may be said, the testator must be presumed to have
known that it was possible some one of the persons named aa
his executors, might refuse to accept the trust, and that the
law provided, that in that event, those who did accept and
374: Wardwell v. McDowell et al. [April T.
Opinion of the Court.
qualify, could execute the will, and it is to be presumed the
testator had equal confidence in each one of the executors.
It is admitted by the defendants' counsel, if the testator
had directed a positive and unconditional sale of the land by
his executors, the case would have come directly within the
statute, but as they are directed to sell, " at any time when
they may think proper for its reasonable value," a special
confidence is reposed in the individuals appointed executors,
which is personal to them, and can only be exercised by them,
not by a part, but by the whole of them. The statute makes
no such distinction, and we have found no case that does.
We find text writers and reports of cases discussing two kinds
of powers as recognized at common law — a naked power, and
a power coupled with an interest. The power given by this
will, we have said, is of the first description, no estate or inter-
est in the lands passing to the executors. Such a power, the
courts of common law said, must be construed strictly, and
must be exercised by all the executors ; that if one refused to
qualify, no sale could be made. To remedy this, the statute
of 21 Henry VIII, ch. 4, was enacted. It does not discrimi-
nate between lands ordered to be sold peremptorily, and those
which the executors may exercise a discretion in selling. Tc
confine it to the former, would be a narrow construction of a
remedial statute, the object of which was, to prevent a failure
of the power, and to remedy the oversight of a testator, in
not providing for the contingency, that some of his appointees
might refuse to serve. As was said by the court in 1 Dev. &
Battle, Den v. Sparks, 392, the great purpose of the statute
is to correct mischiefs resulting from a rigid construction of
these testamentary authorities, and it is the rule of law, so to
expound the act as to suppress these mischiefs and apply its
remedies.
As the court said in Taylor v. Morris, 1 Comstock, 356,
this statute was framed ' upon the presumption and belief, if
that contingency of a refusal by some of the executors to act,
had been foreseen, the testator would have presumed that one
of his executors should execute the power alone, rather than
that it should fail, and this presumption applies with as much
1863.] Waedwell v. McDowell et al. 375
Opinion of the Court.
force to the case of a discretionary power as to one of a man-
datory character. The court remark, that very many testators
are not aware of the common law rule, that in the execution
of a joint power it is indispensable that all should unite, and
in appointing the agents to execute a power involving the
exercise of discretion, it is natural to suppose, that each one
would be selected with reference to his fitness for the trust.
This inference is natural and fair in all cases when the testator
has not thought proper to say, expressly, that a certain num-
ber must unite in the sale.
There is no object expressed in the will for the sale of the
lands, nor are they charged with the payment of the legacies,
yet the power to sell is fully bestowed, and could be exercised
without regard to them. But the proofs in the cause now
show, there were not sufficient personal assets to discharge
the debts, or to pay the legacies, and they could be paid only
by and through the executors. Under this state of facts, not
apparent in 16 111., did not the executors possess a power
coupled with a trust, and of which a court of chancery would
compel execution ? It seems clear they did, and if so, the
qualified executor, under all the authorities cited, had the
power to sell.
If a court of chancery would compel the executors to sell,
they could sell voluntarily, for whatever act a party can be
compelled to perform, he may do voluntarily. Marcy v. Cla-
baugh, 1 Gilm. 26.
And from the proceeds of the sale of this land, the execu-
tor may have paid some of the debts owed by the estate, which
it is in proof, he did pay. But in whatever manner he may
have applied the proceeds, it cannot affect the power to sell,
nor was the purchaser bound to see to their application.
Again, by the first clause of the will, the lands are charge-
able with the debts and funeral expenses, and though, prima-
rily, they are payable out of the personalty, there is nothing
to prohibit a testator from making them payable out of the
lealty in the first instance. In this view, then, the executor
had a power coupled with a trust, to pay the debts and fune-
ral expenses by a sale of the land. In every view to be taken
376 Wardwell v. McDowell et al. [April T.
Opinion of the Court.
of this case, whether the power is a naked power only, or a
power coupled with a trust, we are of opinion, twro executors
named in the will having refused to qualify, a sale by the
executor who did qualify, is valid.
We cannot recognize any such distinction as that attempted
by defendants' counsel, between a power mandatory in its
character, and discretionary. The current of authorities is
against such a distinction. To maintain the distinction, refer-
ence is made to Wooldridge v. Watkins, 3 Bibb, 349; Cole-
man v. McKinney, 3 J. J. Marshall, 246 ; and Clay and-
Craig v. Hart, 7 Dana, 1, all decided by the Court of Ap-
peals of Kentucky. The opinion in Taylor v. Morris, 1
Comstock, 349, is an able review of these cases, and of all the
authorities on this point, and the conclusion is reached, that
no English adjudication or dictum could be found, limiting
the operation of the statute of 21 Henry VIII, ch. 4, to cases
of a peremptory order to sell. No other State seems to
have recognized the distinction made by the court of Ken-
tucky. Zebacffs Lessee v. Smith, 3 Binney, 69; Chanet v.
Villeponteaux, 2 McCord (S. C.) 26 ; Den v. Sparks, 1 Dev-
ereux and Battle (N. C.) 389, both before cited ; Brown v.
Armistead, 6 Band (Va.) 593; Miller v. Meetch et al., 8
Penn. 417; McDowell v. Gray, 29 id. 212. Numerous other
cases might be cited, but it is not necessary.
In conclusion then, we are of opinion that the refusal of
two of the executors named in the will to accept and qualify,
was satisfactorily proved by competent evidence. That the
sale by the executor who did accept and qualify, was valid,
whether the power conferred by the will was a mere naked
power, or a power coupled with a trust, or wrhether the power
was of a discretionary or mandatory character.
The judgment of the Circuit Court is reversed, and the
cause remanded for further proceedings in conformity with
this opinion.
Judgment reversed.
1863.] Millett et al. v. Pease et al. 377
Statement of the case.
DUSTAN MlLLETT et Ctl.
V.
Asia Pease et al.
1. Notice by publication — non-residents — return of "not found."
Since the act of 12th February, 1857, it is not necessary that there should
be a return of " not found," to authorize constructive service upon non-resi-
dents by publication of notice.
2. Same — preserving affidavit of non-residence in ilie record. And when
it is recited in the notice, and also in the decree which is rendered in the
cause, that an affidavit of non-residence was filed, that is sufficient, without
the affidavit being preserved in the record.
Writ of Error to the Circuit Court of McHenry county ;
the Hon. Isaac G. Wilson, Judge, presiding.
Asia Pease and Miranda Pease exhibited their bill in chan-
cery in the court below, against Dustan Millett, H. D. Jame-
son and Harriet P. Jameson, for the foreclosure of a mortgage.
A summons was issued, and returned served upon H. D.
Jameson ; but no return was made as to the other defendants.
The transcript of the record does not set forth any affidavit
of the non-residence of the two defendants, as to whom no re-
turn was made ; but there was notice to them, by publication,
which recites as follows : " Affidavit of the non-residence of
Dustan Millett and Harriet P. Jameson, of the above named
defendants, having been filed in the office of the clerk of the
said Circuit Court, notice is hereby given," etc.
The decree in the cause also recites that, " it appearing to
the court that summons has been regularly served upon H. D.
Jameson, and due publication of notice as to the other defend-
ants, who are not residents of the State of Illinois, and that all
the proceedings to take the bill in this case as confessed
against the said defendants, have been regular, thereupon,"
etc.
A default was entered against all the defendants, the bill
taken as confessed, and final decree of foreclosure rendered.
The defendants below sued out this writ of error ; and insist
48— 31st III.
378 Millett et al. v. Pease et al, [April T.
Opinion of the Court.
that the Circuit Court erred in entering the default against all
the defendants, because there was no service of process upon
Millett, or Harriet P. Jameson ; nor any return of " not
found," as to them, or affidavit of their non-residence, to sup-
port the notice given by publication.
Mr. IL S. Hanchett, for the plaintiffs in error, contended
that the constructive service by publication of notice, was not
good without a return of " not found " as to the defendants
thus sought to be brought into court ; and, also, an affidavit
of their non-residence, which did not appear in the record ;
and cited Cost v. Rose, 17 111. 276.
Messrs. Glover, Cook & Campbell, for the defendants in
error.
The objection that there was no return of the summons as
to Dustan Millett and Harriet P. Jameson, is disposed of by
the statute. Session Laws, February 12, 1857, page 51 ; Scates'
Comp. i64.
The objection that the affidavit of non -residence is not pre-
served in the record, is not well taken. Tills v. Allen, 27
111. 125.
Mr. Chief Justice Caton delivered the opinion of the
Court :
It is first objected to the jurisdiction as to those defendants
not personally served, that no summons was returned not
served before publication as to them. Formerly, this was a
good objection, but the act of l*2th February,. 1857, expressly
declares that this shall not be ground for reversal, and,
practically, dispenses with this requirement of the old law.
It is next objected that there is, in the record, no affidavit
of the non-residence of those defendants, which the statute
requires, previous to the publication of notice. This objection
is precisely answered by the statements of this record, and
the decision in the case of Tibbs v. Allen, 27 111. 119. In
1863.] Walbeidge v. Day et al. 379
Syllabus.
this case, as in that, the decree recites that the affidavit was
filed, and due publication made ; and the clerk in the notice
officially certifies that the requisite affidavit was filed. This,
we held, in the case referred to, was sufficient, and so we hold
here. The decree is affirmed.
Decree affirmed.
Alonzo Walbrtdge
V.
Frederick S. Day, and Isaac C. Day.
1. Heirs — lands descend directly to them. The title to the land of an in-
testate does not vest in his administrator as a trustee, but descends directly
to the heirs.
2. Administrator — extent of Ms control over the lands of the estate. An
administrator cannot affect the title of the heirs to their real estate, de-
scended to them from the intestate, except by a sale authorized by an or-
der of court. They hold the title in their own right, and only subject to
the payment of the debts of their ancestor, in the mode prescribed by
law, and not subject to any other control of the administrator.
3. Administrator's acts cannot affect the title of the heirs. So, where an
administrator accepted from a debtor of the estate a mortgage upon land of
which the intestate died seized in fee simple, and the title to which had
fully vested in the heirs by descent ; and a foreclosure and sale of the prem-
ises was had under such mortgage, it was held, that these proceedings on
me part of the administrator, while they were an admission by him that
the mortgagor had some title in the premises, in no wise affected the title
of the heirs which they took by inheritance.
4. The administrator has no power to admit away the title to real estate
which is held by heirs under the law of descents.
5. Administrator may 'purchase the land from the heirs. Nor would such
proceedings on the part of the administrator operate to estop a subsequent
administrator of the same estate from purchasing the title of the heirs to
these premises, and holding it, at least against the right of purchasers
derived under such mortgage.
G. Title of heirs not merged in any right acquired by administrator as
such. All the title which would pass by the foreclosure and sale in such
case, would be the title which the mortgagor held in the premises. The
title or estate held by the heirs by descent, would not become merged in
that acquired by the administrator through the mortgage, so as to past
their estate by the sale on the decree of foreclosure.
380 Walbeidge v. Day et at. [April T
Statement of the case.
7. Fraud — who has a remedy against it. If in the sale and conveyance
of land, the vendor perpetrates a fraud upon his grantee in respect to the
title to the premises, the remedy against the fraudulent grantor will not
inure to a subsequent purchaser from such grantee so as to enable him to
recover from the fraudulent grantor the purchase money received by him.
8. Caveat emptor — judicial sales. The rule of caveat emptor applies
to a sheriff 's sale of land under foreclosure of a mortgage by scire facias.
Writ of Error to the Circuit Court of the county of La
Salle ; the Hon. Madison E. Hollister, Judge, presiding.
In the year 1834, Edward Keys was the owner in fee sim-
ple of lot number eight, in block number fifteen, in the town
of Peru, in La Salle county. Soon after, Keys died intestate,
seized of the premises, leaving a widow and children. In
1837, George W. Howe became administrator of the estate,
and in that capacity, on the 1st of September, 1837, he re-
ceived from one Spaulding a mortgage upon these same premi-
ses, to secure the sum of $530. What title or claim Spaulding
had to the lot, does not appear. Subsequently, Howe, the
administrator of Keys, instituted proceedings by scire facias,
to foreclose the mortgage, and in February, 1840, obtained a
judgment of foreclosure, and execution was issued, by virtue
of which the premises were sold on the 16th day of May follow-
ing, to Jesse Williams, for the sum of $300. Williams
assigned his certificate of purchase to Crosier, to whom the
sheriff made a deed, on the 17th of May, 1842. Crosier after-
wards conveyed the lot to Frederick S. Day and Isaac C. Day,
the defendants in error ; they conveyed to William F. Day,
on the 2nd of November, 1846, this lot and another, for
$1,500. On the 22nd of July, 1851, William F. Day re-con-
veyed the lot in question to the defendants in error, for the
consideration of $600, by deed with special warranty. In
November, 1851, Willis instituted an action of ejectment in
the Circuit Court of La Salle county, against the Days, and
recovered the premises.
Willis, the plaintiff in the action of ejectment, derived his
title in the following manner : Keys, being the owner of the
lot, died intestate, leaving his widow and several children ;
1863.] Walbeidge v. Day ei al. 381
Statement of the case.
afterwards one of the children died. In 1840, Howe, the
administrator of Keys, died, and Walbridge, the plaintiff in
error, who had married the widow of Keys, became admin-
istrator de bonis non of the estate, and after that, purchased
from the surviving children and heirs at law of Keys, their
interest in the lot ; and thus all the title which the heirs of
Keys held in the premises, became vested in Walbridge and
his wife. On the 4th of May, 1850, Walbridge and wife con-
veyed to Willis, for the sum of $100. Under the title thus
derived, Willis succeeded in the ejectment suit against the
Days, who held under the sale on foreclosure of the mortgage,
as already mentioned.
It appears, that at the May term, 1837, of the Circuit Court
of La Salle county, Howe, as administrator of Keys, obtained
an order for the sale of this lot to pay the debts of the estate,
but there was nothing to show that a sale had ever been made
under that order.
After Willis recovered the premises from the Days, to wit,
on the 9th of July, 1852, he and his wife conveyed the prem-
ises to the Chicago and Rock Island Railroad Company, for
the consideration of $1,600. And in the December follow-
ing, the defendants in error, Frederick S. and Isaac C. Day,
and their wives, conveyed the same premises, by quit-claim
deed, to the railroad company, for the consideration expressed
in the deed, of $100.
It seems, that prior to the institution of the action of eject-
ment, before mentioned, by Willis against the Days, the latter
had compromised the question of title between them by pay-
ing to Willis the sum of eight hundred dollars ; and by the
sale subsequently made to the railroad company, the Days
received one-half the purchase money for their interest in the
lot.
Upon this state of facts, Frederick S. and Isaac C. Day, in
September, 1855, exhibited their bill in chancery in the court
below, against Walbridge, alleging that when he purchased
from the heirs of Keys, and when he afterwards conveyed to
Willis, he knew of the complainant's claim of title to the
premises, and of the just and eg dtable grounds of the same,
382 Walbridge v. Day et al. [April T,
Opinion of the Court.
and that it was unjust and unconscionable on the part of
Walbridge to convey the lot to Willis, and thereby defeat the
rights of the complainants.
It was further claimed in the bill, that inasmuch as the
estate of Keys had received a full consideration for the lot
upon the sale to Williams on the foreclosure of the mortgage
mentioned, the entire title to the premises should have passed
by that sale ; and that the purchase by Walbridge from the
heirs of Keys, and his sale to Willis, was a gross fraud upon
the complainants. They therefore prayed, that Walbridge
might be compelled to reimburse them in their losses by
reason of their title being thus defeated, at least to the extent
of the purchase money paid by Williams, with interest
thereon, together with the taxes subsequently paid by them
upon the lot. Upon the hearing, the Circuit Court decreed
that Walbridge should pay the complainants the sum of
$704.75, and costs, and awarded execution therefor.
Walbridge thereupon sued out this writ of error. The
assignment of error presents the question as to the character
of title acquired by Walbridge through his purchase from the
heirs of Keys, and of Williams, who purchased under the
foreclosure of the Spaulding mortgage ; and also, whether the
purchase by Walbridge and his subsequent sale to Willis, was
a fraud upon the complainant.
Mr. E. S. Holbrook, for the plaintiff in error.
Messrs. G. S. Eldredge, and William Chumasero, for
defendants in error.
Mr. Justice Walker delivered the opinion of the Court :
It appears from the evidence in this record, that Keys in
his lifetime, wras the owner of the lot in controversy. That
upon his death, Howe became the administrator of his estate,
and, as such, took a mortgage from Spaulding, upon this lot,
to secure a debt payable to him as administrator, for the sum
of five hundred and thirty dollars. That after its maturity
1863.] Walbridge v. Day et at. 383
Opinion of the Court.
he foreclosed the mortage by scire facias, and the property
was sold to Williams, who afterwards assigned his certificate
of purchase to Crosier, to whom the sheriff afterwards con-
veyed the lot. Defendants in error became the purchasers of
Crosier some time in the year 1840. Howe departed this life,
and plaintiff in error, who having previously intermarried
with Keys' widow, became administrator de bonis non of Keys'
estate.
He also purchased the lot of the heirs of Keys. He and
his wife afterwards sold it to Willis, who instituted an action
of ejectment against defendants in error, and recovered the
property. Afterwards, Willis and defendants in error sold the
property to the railroad company for sixteen hundred dollars.
On these facts the court below decreed that plaintiff in error
pay to defendants in error the sum of $704.75 and costs oi
the suit, and awarded execution to enforce its payment.
There is no pretense that plaintiff in error was either
directly or remotely connected with title derived from Spauld-
ing, by the foreclosure of his mortgage to Howe, the admin-
istrator of the estate of Keys. But it is supposed that the
court below acted upon the supposition that plaintiff in error,
as administrator de bonis non, was estopped from acquiring
title to the premises, and that, by doing so, he perpetrated a
fraud upon defendants in error, which renders him liable to
make compensation to them. Even if this was true of the
title of which the intestate was the owner, it could not apply
to an outstanding title, which has been sold in the collection
of a debt. When Howe, as administrator of the estate, took
the mortgage, he certainly admitted that Spaulding had some
kind of title to the premises. But he had no power to admit
away the title held by Keys' heirs. Nor could the foreclosure
of the mortgage, or the sale of the property under execution,
have that effect. When this sale was made, it was not pro-
posed to sell the title of the heirs, but it wTas Spaulding's title.
That sale could by no conceivable rule of law merge their
title, legally or equitably, into Spaulding's. It was a sheriff's
sale, and the rule of caveat emptor applies.
The administrator could not affect the title of the heirs to
384 Walbridge v. Day et al. [April T.
Opinion of the Court.
their real estate, descended to them from the intestate, except
by a sale authorized and licensed by an order of court. They
hold their title in their own right, and only subject to the
payment of the debts of their ancestor, in the mode prescribed
by the law, and not subject to any other control of the
administrator.
We are at a loss to perceive how the administrator de bonis
non can be estopped from purchasing a title from the heirs of
his intestate, by the former administrator having foreclosed a
mortgage and procuring the premises to be sold to pay a
debt. His predecessor made no warranty of the title, and if
he had, it would have been personal, and could not affect his
successor. Nor does it appear that Howe made any misrepre-
sentations as to the character of the title sold by the sheriff;
but, had he done so, it could only have harmed him individu-
ally, and would not have operated against his successor. The
title of the intestate does not vest in the administrator as a
trustee, but it descends directly to the heirs.
It is not pretended that plaintiff in error did any fraudulent
act to mislead defendants in error, when they purchased at
the sheriff's sale. Nor does the record contain any evidence
that Howe ever sold the premises for the payment of debts of
the estate. It only appears that Howe was authorized to
make such a sale by a decree of court. Under such a state
of facts, we can perceive nothing to prevent the heirs from
selling, or plaintiff in error from purchasing, their title.
Defendants in error have not shown that they had any
interest in Keys' title to this lot. They only show their con-
nection with Spaulding's title. So far as defendants in error
are concerned, they are wholly disconnected with, and are
strangers to, the title held by Keys' heirs.
But even if Howe was guilty of any fraud, it was upon
Williams, the purchaser at the sheriff's sale. But, if that were
established, we are at a loss to perceive how the right to
recover the purchase money received by Walbridge could
inure to the benefit of defendants in error. When they pur-
chased, it was for them to satisfy themselves of the validity
of the title, and require covenants of tne grantor, or to risk
1863.] Hopps v. The People. 385
Syllabus.
the title under a quit-claim deed. If their grantor perpetrated
a fraud upon them, their remedy is against him. Or, if they
took a covenant in the conveyance, they must look to it for
their right of recovery.
The decree of the court below is reversed, and the cause is
remanded.
William Hopps
v.
The People of the State of Illinois.
1. Evidence — proof of good character in capital cases. Upon the trial
of a party on the charge of murder, where the defense is insanity, it is com-
petent for the defendant to give in evidence his uniform good character as
a man and a citizen.
2. And it seems such evidence is admissible on the part of the defend-
ant, in capital cases generally.
3. Same — proof that accused had committed another offense. As a gen-
eral rule, when a party is on trial upon a charge of murder, it is not com-
petent for the prosecution to prove that years previously he had committed
another offense, as, violating the revenue laws by smuggling. The proof
should have no reference to any of the prisoner's conduct, not connected
with the charge upon which he is being tried.
4. Same — exception to the above rule, dependent upon the defense. But
where the defense is insanity, and the coolness and unconcern of the pris-
oner at the time he committed the homicide are relied upon as justifying
inferences favorable to the plea, it is competent to show that the prisoner
had been in early years engaged in the perilous calling of smuggling, as
tending to rebut the inference that his deportment on the fatal occasion
was attributable to a want of sanity.
5. Insanity — of the character and degree that will acquit. Where a
party who is upon trial on an indictment for murder, interposes the defense
of insanity, the rule in regard to the character and degree of insanity which
would demand an acquittal, is thus laid down : that whenever it shall ap-
pear from the evidence, that at the time of doing the act charged, the pris-
oner was not of sound mind, but affected with insanity, and such affection
was the efficient cause of the act, and that he would not bave done the act
but for that affection, he ought to be acquitted.
49— 31st III.
386 Hopps v. The People. [April T.
Statement of the case.
6. But this unsoundness of mind, or affection of insanity, must be of
such a degree as to create an uncontrollable impulse to do the act charged,
by overriding the reason and j udgment, and obliterating the sense of right
and wrong as to the particular act done, and depriving the accused of the
power of choosing between them.
7. Evidence — burthen of proof in criminal cases. When a defendant
who is being tried upon a criminal charge, sets up insanity as an excuse
for the act, he does not thereby assume the burthen of proof upon that
question. Such a defense is only a denial of one of the essential allega-
tions against him. Mr. Justice Walker, dissenting.
8. Reasonable doubt of the sanity of the accused, acquits. And in
sustaining such a defense, it is not necessary that the insanity of the ac-
cused be established even by a preponderance of proof ; but if, upon the
whole evidence, the jury entertain a reasonable doubt of his sanity, they
must acquit. Qualifying the rule in Fisher's case, 23 111. 293. Mr. Justice
Walker, dissenting.
Wsrr of Error to the Circuit Court of Cook county ; the
Hon. George Manierre, Judge, presiding.
William Hopps was indicted in the court below for the
murder of his wife. Being put upon his trial, the fact of
the killing was clearly established, and was not controverted
by the accused ; but it was insisted in his behalf, that he was
insane at the time of the commission of the act charged, and
in reference to that question voluminous proofs were made
both by the defense and the prosecution.
The trial below resulted in the conviction of the prisoner
of the crime as charged in the indictment, and a new trial
being refused, he brought the case to this court upon a writ
of error.
The questions decided here, arise upon various rulings of
the court below in admitting evidence on the part of the
prosecution, and rejecting evidence offered by the defense;
the grounds of alleged error in those rulings sufficiently
appear in the opinion of the court.
Other questions arise upon the instructions of the court
below, which are embraced in two propositions, first, What
character and degree of insanity will excuse the commission
of an alleged crime ; and second, Must the fact of insanity,
1863.] Hopps v. The People. 387
Opinion of the Coirrt.
when set up as a defense, be established by preponderating
evidence. It is not necessary to the proper understanding of
the rules laid down upon these questions to set forth here the
voluminous instructions of the Circuit Court.
Messrs. McComas & Dexter, for the plaintiff in error.
Mr. W. K. McAllister, for the defendants in error.
Mr. Justice Breese delivered the opinion of the Court :
The plaintiff in error was convicted in the Cook Circuit
Court, on an indictment for the murder of his wife. He brings
the record here, complaining of several errors alleged to have
been committed to his prejudice, the most important of which,
we propose to notice.
He complains, first, that the Circuit Court would not permit
him to give evidence of his uniform good character as a man
and a citizen.
It was, at one time, a disputed question, whether such evi-
dence could be given in a case where, as in this, the homicide
is not denied. Some of the books say, such evidence, if
offered, ought to be restricted to the trait of character in
issue, or, in other words, should bear some analogy to the na-
ture of the charge. 3 Gr. Ev., sec. 25.
To the same effect is 2 Russ. on Crimes, 784, but yet, he
says, the good character of an accused party is an ingredient
which should always be submitted to the consideration of the
jury, along with the other facts of the case. lb. 785.
In a case where the defense is insanity, we cannot have a
doubt, that evidence of uniform good character as a man and
a citizen, is proper for the jury to consider ; whether a per-
son whose character has been uniformly good, has, in a
sane moment, committed the crime charged. It is undoubt-
edly true, a sane man, whose previous character has been un
exceptionable, may commit an atrocious homicide, no doubt
may exist of the fact, yet, under his plea of insanity, should
he not be entitled to all the benefit which may be derived
3S8 Hopps v. The People. [April T.
Opinion of the Court.
from the fact of uniform good character, as tending, slightly,
it may be, to the conclusion that he could not have been sane
at the time the deed was done. Generally, a person of good
character does not, of a sudden, fall from a high position, to
the commission of outrageous crimes ; should he do so, would
it be an unnatural or forced inference, that he may have been
affected with insanity at the time % But be this as it may, it
seems to be now settled, that such evidence in capital cases, is
admissible. In the case of the Commonwealth v. Hardy, 2
Mass. 317, which was a capital case, Parsons, Oh. J., said, a
prisoner ought to be permitted to give in evidence his general
character in all cases. Sewell and Parker, justices, said,
they were not prepared to admit that testimony of general
character should be admitted in behalf of the defendant, in
all criminal prosecutions ; but, they were clearly of opinion,
that it might be admitted in capital cases in favor of life.
The same .rule was stated in the case of the Commonwealth v.
Webster, 5 dishing, 325. The court there say, it is the privi-
lege of the accused, to put his character in issue or not.
In 2 Bennet and Heard's Leading Cases, 159, and notes, the
cases are collected and commented on, in which this rule is
recognized.
In the case of The People v. Vane, 12 Wendell, 78, the
court held, that evidence of the good character of the defend-
ant on the trial of an indictment, is always admissible, though
it cannot avail when the evidence against him is positive and
unimpeached ; but when the evidence is circumstantial, or
comes from a suspected or impeached witness, proof of good
character is important.
We think, at least in view of the defense relied on, the
evidence of the prisoner's uniform correct bearing, as a man
and a citizen, should have been made known to the jury. A
good character is a most precious possession, and it ought to
be permitted, in favor of life at least, to go to the jury.
The plaintiff in error also complains, that the prosecution was
permitted to prove that about thirty years before the commis-
sion of the crime charged, he had been engaged, in a violation
of the revenue laws of the country, by a career of smuggling
1863.] Hopfs v. The People. 380
Opinion of the Court.
goods and property, to and from Canada. The prisoner insists
it was not competent to prove this offense against him ; that all
the facts proper to be proved, should be strictly relevant to
the particular charge, and have no reference to any of his
conduct, not connected with the charge.
This is undoubtedly true as a general principle, but we
think such proof was warranted in this view. The defense
being insanity, the coolness and unconcern of the prisoner at
the time he did the fatal act, was made a prominent feature in
the case, and inferences were sought to be drawn from it,
favorable to the plea.
Is it possible, ask his counsel, that a man who could show
so much coolness, self-possession and apathy, at the moment
and after the fatal deed, could be otherwise than insane ? To
this the people reply, the prisoner had spent years of his early
life in a perilous calling, demanding, at all times, great cool-
ness and hardihood, and therein, had educated his nerves to
withstand any shock ; in such a school he learned the deports
ment exhibited by him on the fatal occasion. To account for
this coolness and unconcern, the testimony of Beardsley and
Phelps was properly received, it being in the nature of
rebutting evidence on the point made.
But these are small points, compared to those we must
consider.
The prisoner complains, that the court did not lay down to
the jury, correctly, the law of his case. That he was preju-
diced by the charge of the court, not coming up, as he alleges
it should have done, to the true principles involved in it, by
which guilt was established in a case where guilt could not
exist, and for which his life must be forfeited, if this court has
no corrective power.
The homicide stands confessed. It has never been denied
by the prisoner ; on the contrary, he declared on its commis-
sion, that it had been long contemplated and was right ; that
his wife was unchaste. After his arrest, he justified the deed,
and has, throughout, exhibited total indifference and uncon-
cern.
His counsel say for him, he was not of sound mind when
390 Hopps v. The People. [April T.
Opinion of the Court.
the deed was done, and the court, trying the cause, gave to the
jury, at great length, its views of the nature of the defense,
and prescribed the rule which should govern them in the
decision of the case.
We do not propose to examine, in detail, the several instruc-
tions given by the court for the prosecution, or those refused
when asked by the defense. We are not fully convinced
what the rule, or tests, should be in such cases. The results
of scientific investigation on this intricate subject, are so im-
perfect as to render . it very difficult to establish any general
rule, by which judicial proceedings of a criminal nature
should be governed, when the defense of insanity is inter-
posed. Writers on the subject treat of several different kinds
of insanity, and of different degrees of the several kinds, and
among them, there is considerable diversity of opinion on
the same point. They furnish, as yet, no true and safe guide
for courts and juries, but it is hoped as science advances, a
rule will be eliminated, which, whilst it shall throw around
these poor unfortunates a sufficient shield, shall, at the same
time, place no great interest of community in jeopardy.
It is now generally conceded, that insanity is a disease of
the brain, of that mass of matter through and by which that
mysterious power, the mind, acts. There, the mind is sup-
posed to be enthroned, acting through separate and distinct
organs. These organs may become diseased, one or more or all,
and in the degree, or to the extent of such disease, is insanity
measured. A disease of all the organs, causes total insanity,
while of one or more, partial insanity only. There is, it
seems, a general intellectual mania, and a partial intellectual
snania, and a moral mania, which is also divided into general
*nd partial. It is claimed for the prisoner, that the species of
insanity with which he is afflicted, is of the partial intellectual
order, denominated monomania ; that is to say, a mania on
one subject, and that subject, the infidelity of his wife, in
which his belief, without the least ground to base it upon,
was so fixed as to become a deep-seated delusion amounting
to mania. In the simplest form of this species of mania, the
understanding appears to be tolerably sound on all subjects
1863.] Hopps v. The People. , 391
Opinion of the Court.
but those connected with the hallucination. Kay's Med. Jur.
164.
Premising these, it is truly said, it has been found difficult
to establish any general rule under which all these varieties
of insanity may be safely included and controlled, when such
a defense is made.
The rule prevailing in the times of Lord Coke, Hale, and
other luminaries of the law, in its not most enlightened days,
was, that to exempt from punishment, the party charged must
be totally deprived of his understanding and memory. As
science advanced, and closer investigations were had upon this
subject, it was held, if the accused had so far lost the use of
his understanding as not to know right from wrong, he was
not responsible, and this rule has been so far modified as to be
applied to the precise act for which the prisoner may be in-
dicted.
This rule seems to have been adhered to by the English
courts, and by some of the courts of this country, with occa-
sional departures only, as in Had field? s case, and other cases
commented upon in notes to 1 Leading Criminal Cases, 93.
In HadfieWs case, tried before Lord Ken yon, in 1800, it was
held, if the accused was laboring under a sincere and firm
delusion, that it was his duty to do the act charged, and it
was done under the influence of such delusion, he was not
responsible. Yet in Billingham's case, tried before Sir
James Mansfield, in 1812, reported in 5 Carr. & Payne, 169,
the old rule of Lord Hale's time, was announced and en-
forced, and an undoubted lunatic condemned to the gallows.
We do not propose to go into an examination of the various
decisions, English and American, on this subject, it being
sufficient to say, that no certain, uniform and definite rule,
can be gathered from them. In the midst of this uncertainty,
with the best reflection and examination we have been able
to give to this very important and most interesting question,
we have come to the conclusion, that a safe and reasonable
test, in all such cases, would be, that whenever it should
appear from the evidence, that at the time of doing the act
charged, the prisoner was not of sound mind, but affected
392 Hopps v. The People. [April T.
Opinion of the Court.
with insanity, and such affection was the efficient cause of
the act, and that he would not have done the act but for that
affection, he ought to be acquitted. But this unsoundness of
mind, or affection of insanity, must be of such a degree as to
create an uncontrollable impulse to do the act charged, by
overriding the reason and judgment, and obliterating the
sense of right and wrong as to the particular act done, and
depriving the accused of the power of choosing between
them. If it be shown the act was the consequence of an in-
sane delusion, and caused by it, and by nothing else, justice
and humanity alike demand an acquittal. Our statute was
designed to ameliorate the rigor of the old rule of the com-
mon law, in declaring that a person " affected with insanity,"
shall not be considered a lit subject of punishment, for an act
done, which, under other circumstances or disposition of mind,
would be criminal. The rule we have endeavored to pre-
scribe, seems to fulfil this demand of the statute.
Another question remains as to the proof necessary in such
cases, and the duty of the jury thereupon.
In this case the court instructed the jury, f the act was
proved to their satisfaction, by the weight and preponderance
of evidence, to have been one of insanity only, the prisoner
was entitled to an acquittal, though the defense should not be
proved beyond all reasonable doubt.
This instruction greatly modifies the old rule ; but it does
not, in our judgment, announce the true principle in criminal
cases. In every criminal proceeding before a jury, without
any exception, if a reasonable doubt is entertained of the
guilt of the accused, the jury are bound to acquit. ISTow,
what is essential to the commission of a crime? Our statute
declares, to constitute crime, there shall be an union or joint
operation of act and intention, or criminal negligence. The
overt act is one ingredient, the intention another, and their
union is indispensable to constitute guilt. Intention is proved
by the circumstances connected with the perpetration of the
offense, and the sound mind and discretion of the person
accused. The killing alone, under the most aggravated cir-
cumstances, will not suffice, if sound mind and discretion be
1863.] Hopps v. The People. 393
Opinion of the Court.
wanting. Sound mind is presumed, if the accused is neither
an idiot, lunatic, "nor affected with insanity." If he be
affected with insanity, then sound mind is wanting, and crime
is not established. Sound mind, or sanity, then, is an ingre-
dient in crime, quite as essential as the overt act. Who will
deny, if there be a reasonable doubt as to the overt act, that
the jury are bound to acquit ? Equally imperative must be
the rule, if a reasonable doubt be entertained as to the sanity
of the prisoner. Sanity is guilt, insanity is innocence ; there-
fore, a reasonable doubt of the sanity of the accused, on the
long and well-recognized principles of the common law, must
acquit. Suppose the question was one of identity, would not
a reasonable, well-founded doubt on the point, acquit the
prisoner? Suppose an alibi was sought to be proved, and
proof sufficient was offered, to create a reasonable doubt
whether the accused was at the place, and at the time, when
and where the offense was alleged to have been committed,
is not the prisoner entitled to the benefit of the doubt ? So, if
the defense be that a homicide was justifiable or excusable,
is not the principle well settled, a reasonable doubt will
acquit ? The rule is founded in human nature, as well as in
the demands of justice and public policy. Innocence is the
presumption, guilt being alleged, the State making the charge
is bound to prove it; the State is bound to produce evidence
sufficient to convince the mind of the guilt of the party. If
a reasonable doubt is raised, then the mind is not convinced,
and being in that unsettled state, whatever the probabilities
may be, a jury cannot convict. It is entirely impossible for
them to say the accused is guilty, when they entertain a rea-
sonable doubt of his guilt.
It is urged by the prosecution, that the burden of proof is
on the accused, to make out his defense. That sanity being
the normal condition, insanity must be established by prepon-
derating evidence.
We do not understand the burden of proof is shifted on
the defendant. Every man charged with crime, is entitled tc
claim the benefit of all the provisions of the law. In every
case of murder the first inquiry is, has the homicide been
50— 31st III.
394: Hopps v. The People. [April T.
Opinion of the Court.
committed — did the prisoner do the deed — did he intend to
do it — was he of sound mind and not affected with insanity
when the act was done, and was the act done with malice
aforethought, express or implied ? These are, all of them,
affirmative facts, and must he proved by the prosecution.
The State avers their existence — they are all essential to
constitute the crime, and the State must prove them — the
burden of proof is on the State. But it is said, the State is
relieved of the burden by proving the prisoner did the act,
the law implying that he intended to do it, and that the
presumption is, every man is of sound mind. These are but
presumptions, and when they are rebutted by proof of absence
of criminal intention, by reason of unsoundness of mind, or
a reasonable doubt is raised on the point, that doubt must
avail the prisoner. Can it be properly said, in criminal cases
the burden of proof ever shifts, so long as the defendant
bases his defense on the denial of any essential allegation in
the indictment ? We think not. The prosecution is bound,
on every principle of correct pleading, and of justice, to
maintain their allegations ; and it is not in their power to shift
the burden on to the defendant. Commonwealth v. McKie,
1 Gray (Mass.) 61. The presumption of innocence is as
strong as the presumption of sanity. The burden of proof
must, therefore, always remain with the prosecution to prove
guilt beyond a reasonable doubt — a serious and substantial
doubt, not the mere possibility of a doubt
The rule here announced, differs from that laid down in
Fisher's case, 23 111. 293. In that case we said, sanity being
the normal condition, it must be shown by sufficient proof,
that from some cause, it has ceased to be the condition of the
accused. The opinion in that case, was prepared under
peculiar circumstances not admitting of much deliberation,
and this point was not pressed upon the attention of the court,
or argued at length. Further reflection has satisfied us, it
was too broadly laid down, and that justice and humanity
demand, the jury should be satisfied, beyond a reasonable,
well-founded doubt, of the sanity of the accused. The human
mind revolts at the idea of executing a person whose guilt is
1863.] Hopps v. The People. 395
Separate opinion by Mr. Chief Justice Caton.
not proved, a well-founded doubt of his sanity being enter-
tained by the jury.
In these views we are supported by the cases of The State v.
Marler, 2 Alabama, 43 ; * The People v. McCann, 2 Smith
(N. Y.) 58 ; Polk v. The State, 12 Ind. 170. Other cases may,
no doubt, be found to the same purport. Be the cases few or
many, the principle is, nevertheless, correct.
The judgment of the Circuit Court is reversed, the cause
remanded, and a venire de novo awarded.
Separate opinion by Mr. Chief Justice Caton :
While I concur with my brother Bkeese, I may be per-
mitted to make a few suggestions upon a single point in this
case.
It is a general rule in all criminal trials, that if, from the
whole evidence, the jury entertain a reasonable doubt, it is
their duty to acquit ; and the reason is, that it is better that
many guilty persons should be acquitted, than that one inno-
cent person should be convicted. The bare possibility that
a person about to be executed is innocent of crime, produces
a shudder in every one who is not callous to all sense of jus-
tice and humanity ; and the all-pervading sentiment of civil-
ized man demands this rule. Does humanity less demand it
in a case where the defense is insanity, than where it is excus-
able or justifiable homicide % Is it any less revolting to an
enlightened humanity to hang an innocent crazy man than
one who is sane ? His very helplessness commends him to
the commiseration of mankind. One who is indicted for
murder says, true, I killed the man, but I did it in necessary
self-defense, shall be acquitted if he can raise a reasonable
doubt on this question, although the preponderance of evidence
is, and the probabilities are, that he was the attacking party,
and pursued his victim unto death, with malice aforethought ;
and shall it be said, when the same doubt exists as to the
sanity of the prisoner, he shall be convicted and executed?
The very suggestion is shocking to a sense of even-handed
justice.
396 Hopps v. The People. [April T,
Separate opinion by Mr. Chief Justice Caton.
The question at last returns, is the prisoner guilty or not
guilty ? If there is a reasonable doubt of his guilt, he must
be acquitted. If there is such doubt of malice, all agree that
he must have the verdict. If he was insane, there could be
no malice, and hence, to raise a doubt of sanity is to raise a
doubt of malice. Sanity is as necessary to guilt as any other
fact, and if there is a reasonable doubt of that, there must be
a doubt of guilt. Why should there be an exception to this
otherwise universal rule ? I can see none in reason, and it is
against the fundamental principles of the law. The old com-
mon law is silent on this subject. It is only in modern times
that the question has arisen, and the first who held that insan-
ity was an exception to the rule, overturned the rule itself,
but they could not abolish or destroy it. It still remains, and
I trust, will ever remain an immovable monument to the
civilization and humanity of our age and country.
It is said, insanity may be simulated. So may any other
fictitious defense be got up to screen the guilty. The evi-
dence in this case is, that it is exceedingly difficult to simulate
insanity so as to avoid detection. It is but very lately that
insanity has become a subject of careful scientific investiga-
tion, which kas made, and is making, rapid progress. This
investigation enables experts to detect simulated insanity with
much more certainty than could formerly be done.
Shall we ignore and denounce the results of human study
and research on this subject, while we recognize and applaud
the advancement of science in all other directions ? Peoples
and governments in all civilized countries recognize them by
the erection of vast asylums for these unfortunates, where
this science can be carefully studied by those who will devote
their lives to the investigation of this subject, where very
many, by careful scientific treatment, are restored, and become
useful members of society. To say that men by careful
study and investigation can acquire no skill on this subject,
while the same study and investigation will constantly develop
new truths on all other subjects, would be a daring assump-
tion upon which we cannot consent to hang a fellow man. At
the time this question was first brought before the courts, it
1863.] Hopps v. The People. 397
Separate opinion by Mr. Justice Walker.
may be that it was in some cases difficult to detect simulated
insanity, and thus the courts may have been induced to over-
turn the well established law to meet the apprehension, but
this danger, to say the least, is very much diminished now.
I am well convinced that we should adhere to the old and
well established rules of the criminal law, and that we should
require, at least, as much evidence to convict a crazy man as a
sane one.
Separate, and partially dissenting, opinion of Mr. Justice
Walker :
I am unable to concur in all of the reasons assigned by the
majority of the court, for reversing this judgment. On the
question of the measure of proof necessary to a conviction,
where the plea of insanity is interposed, there may be a con
flict in the authorities, but it will be found that the current
in fact all but two cases, so far as I can find, establish the
rule, that the plea must be established by at least a prepon-
derance of evidence. It is a presumption lying at the foun-
dation of jurisprudence, as well as all the business relations
of life, that all men are of sound mind. This proposition
cannot be controverted, and to be avoided must be rebutted
by evidence.
The plea of insanity, like all other special pleas, confesses
the act charged and avoids its consequences, by showing cir-
cumstances which establish a defense. This defense, like
every other plea which confesses and avoids, must be proved.
And in analogy with the practice under special pleas generally,
the proof must devolve upon the party interposing the defense.
In this defense the accused admits the homicide, but alleges,
that he was incapable of distinguishing right from wrong at
the time, owing to mental derangement. Having averred the
facts necessary to his defense, and being required to establish
the truth of his plea, can it be said that he has done so,
when he has only rendered it doubtful whether he was sane
or insane ? This plea, like all other affirmative facts, is
capable of satisfactory proof. It cannot be that a person is so
398 Hopps v. The People. [April T,
Separate opinion by Mr. Justice Walker.
far insane as not to know right from wrong, and yet those
with whom he associates be ignorant of the fact. Such cases
cannot occur among people of ordinary intelligence and obser-
vation.
In the case of Regina v. Oxford, 9 C. & P. 525, Lord
Chief Justice Denman announced the rule, that all persons
must be taken, prima facie, to be of sound mind until the
contrary is shown. He says, " the question is, whether the
prisoner was laboring under that species of insanity that satis-
fies " the jury " that he was quite unaware of the nature and
consequences of the act he was committing, or, in other words,
whether he was under the influence of a diseased mind, and
was really unconscious, at the time he was committing the act,
that it was a crime." It is here distinctly announced that the
jury must be satisfied, and not merely left in doubt, of the
truth of the plea. He says nothing about any species of doubt
as to its truth.
In Great Britain, as late as in June, 1843, a series of ques-
tions was propounded to the fifteen judges, on the subject of
the defense of insanity, to which they returned answers. In
answer to the second question, they say the jury ought, in all
cases, to be informed, that every man should be considered of
sound mind until the contrary is clearly proved in evidence.
" That before a plea of insanity should be allowed, undoubted
evidence should be adduced, that the accused was of diseased
mind, and that, at the time he committed the act, he was
not conscious of right and wrong." Wheat. Crim. Law, 46.
This answer of all the judges of England clearly establishes
the rule of law in the courts of that country to be, that the
accused must prove this defense of insanity, by undoubted
evidence of its truth. It is believed that no well considered
case can be found, decided in any British courts, announcing
a different rule.
In the case of Fisher v. The People, 23 111. 283, this
court announced the rule, that " Before such a plea can be
allowed to prevail, satisfactory evidence should be offered
that the accused, in the language of the criminal code, was
" affected with insanity," and, at the time he committed the
1863.] Hopps v. The People. 399
Separate opinion by Mr. Justice Walker.
act, was incapable of appreciating its enormity." The rale
here announced is a modification of the rule of the British
courts, and accords with the current of decisions in this
country. Whilst this is not the uniform rule of the American
courts, yet it has been announced by a large majority. This
rule seems to accord with reason and justice, and is well calcu-
lated to protect community against the perpetration of crime,
insure the accused of a fair trial, and is in accordance with the
analogies of the law.
Experience teaches us, that insanity is readily simulated, to
the extent of creating a doubt in the minds of those who
have no opportunity, by associating with the accused, of
detecting the fraud. If the rule announced by the majority
of the court, becomes the established law, I have grave
apprehensions that it will be found a ready means of screen-
ing the guilty from merited punishment, and will operate
injuriously upon society. It appears to me that the well
being of society, the prevention of crime, and justice to the
people, all require that the rule in Fishers case should be no
further relaxed.
I, however, concur with the majority of the court in hold-
ing that the accused was entitled to give evidence of his
previous good character. This seems to be held to be evi-
dence that the accused may resort to, and have considered by
the jury. Its weight in many cases may justly be of great
moment to him, whilst in others entitled to but little weight.
It, like all other evidence, must be left to the consideration
of the jury, to be weighed in connection with all the other
testimony in the case. We are not able to say what its effect
might have been had it been admitted.
The court below therefore erred in rejecting this evidence
Judgment reversed.
4:00 Hinds et al. v. Ingham. [April T
Statement of the case.
Orvis C. Hinds et al.
v.
John Ingham.
Surety — release—waiver of release. Where the principal maker and the
payee of a note, agree, for a valuable consideration, to extend the time of
payment of the note, without the knowledge or assent of the surety, a sub-
sequent payment of a part of the note by the surety, and a promise by him
to pay the balance, with a knowledge on his part, at the time, of the prior
extension, will be a waiver of any defense which he might have made by
reason of the extension.
Appeal from the Court of Common Pleas of the city of
Aurora ; the Hon. B. F. Parks, Judge, presiding.
This was an action of assumpsit instituted in the court below
by John Ingham, the appellee, upon the following promissory
note:
Aurora, September 19, 1854.
a We jointly promise to pay John Ingham or order, three
hundred dollars, on the first day of May next, at ten per cent.
interest for money loaned.
(Signed) O. C. HINDS.
J. A. HINDS.
A. H. Hinds, Surety.'"
On the back of said note were the following indorsements :
1. "Sept. 4th, 1856. Kec'd on the within note two years'
interest, sixty dollars."
2. " Kec'd on the within note in full for interest to Sept.
19th, 1858," (followed by the following words, erased by
drawing a pen across the same, and marked error, to wit:)
"the time of the note extended to that time." "Error."
" Aurora, Oct. 21st, 1857."
3. " Kec'd on the within note $30. January 13th, 1859.';
The general issue was pleaded, and by agreement, a jury
was waived, and the cause was tried by the court. The note
being introduced in evidence, the defendants then called as a
witness John W, Marshall^ who testified as follows : I have
1863.] Hinds et al. v. Ingham. 401
Statement of the case.
seen this note. I put on the indorsement dated October 21,
1857 ; it is in my handwriting. This indorsement reads as
follows: "Rec'd on the within note in full for interest to
Sept. 19th, 1858, the time of the note being extended to that
time. Aurora, October 21st, 1857." I think I wrote this
indorsement at the time of its date. I have an indistinct
recollection by whose direction I put on the indorsement. O.
C. Hinds and the plaintiff were present. I think they came
into my store, and Hinds handed me the note and told me to
make the indorsement. I think that the other defendants
were not present. Don't know that A. H. Hinds knew that
the time on the note was extended. My recollection in the
matter is indistinct. The word " error " is not in my hand-
writing. I did not write the word " error" or make the
erasure, on said indorsement. I handed the note to the plain-
tiff and O. C. Hinds, after I wrote the indorsement, and there
was no erasure on at that time. I think O. C. Hinds was
solvent at the time 1 made the indorsement. I think he is
not now.
The plaintiff then called S. & Ingham, who testified as
follows : I wrote the last indorsement on this note, that is, the
one of thirty dollars, dated January 13, 1859. The thirty
dollars was paid to me by the defendant, A. H. Hinds, at the
time it was indorsed. I wrote this indorsement at the time it
was paid. Think I got up from the table and got the note
and made this indorsement in the presence of A. H. Hinds.
Think I then showed him this indorsement. The reason i%
that it is my way of doing business to do so, so that the
person may see that it is correct. I do not recollect positively,
that I did in this case, but I think I did. I collected the
money for my brother, the plaintiff, who was gone to Iowa.
He left the note with me to collect. A. H. Hinds and I were
neighbors, and I spoke to him frequently about paying the
note after that, and he told me the note should be paid. Did
not make any objection to it.
The indorsements upon the back of the note were then
given in evidence, by the defendants.
The court found the issue for the plaintiff ; the defendants
51-t31stIll.
402 Hinds et at. v. Ingham, [April T.
Briefs of Counsel.
interposed a motion for a new trial, which was overruled, and
exception taken ; the court rendered a judgment in pursuance
of the finding, against all of the makers of the note ; from
that judgment they took this appeal, and by their assignment
of errors, present the question whether the surety in the note
was released from his liability thereon, by reason of the
extension of the time of payment without his assent.
Messrs. Wheaton & Brown, for the appellants.
1. An agreement to extend the time of payment, founded
on a valuable consideration, made between the maker of the
note and the holder, discharges the surety. 26 111. 282,
286 ; Story on Prom. Notes, sees. 413, 414; 1 Gilm. 410.
2. The payment of interest in advance, is such a considera-
tion for the extension, as discharges the surety. 26 111. 282,
3. ' The indorsement on the back of the note in question,
made by Marshall, and under the direction of O, C. Hinds
and Ingham, the plaintiff, is sufficient evidence of such an
extension of the time of payment of the note, as discharges
the surety, A. H. Hinds. 27 111. 327. This indorsement is
as follows : " Rec'd on the within note, in full for interest to
Sept. 19, 1858, the time of the note being extended to that
time. Aurora, Oct. 21st, 1857."
4. The payment, by the surety, A. H. Hinds, of thirty
dollars on the note, subsequent to his discharge, is no waiver
of it, unless it is shown that he knew of such discharge at the
time of such payment. Neither will his promise to pay the
note subsequent to his discharge waive it, unless he knew of
such discharge at the time of such promise. This is the law
relative to the waiver of the discharge of the indorser of a
note or bill of exchange. See 6 Wend. 658 ; 5 Johns. 385 ;
1 Hill (N. Y.) 287; 9 Mass. 408; Serg. & Kawle, 425; 10
Wend. 504 ; 16 Johns 152.
5. The law relative to the discharge of an indorser or
surety, or to the waiver of such discharge, is the same. See
Story on Prom. Notes, sees. 413, 414 ; 26 111. 286 ; 21 111
129.
1863.] Hinds eh al. v. Ingham. 403
Opinion of the Court.
6. The plaintiff must show clearly that the indorser knew
of his discharge, at the time he promised to pay the note.
10 Wend. 507; 16 Johns. R. 152; 6 Wend. 658; Grain v.
Colwell, 8 Johns. E. 384 , 4 Mass. K. 341 ; 7 ib. 449 ; 8 Pick
K. 1 ; 12 Johns. R. 423.
Messrs. Leland & Blanchard, and J. G. Baku, for the
appellee, insisted that one of several makers of a note, could
not, alone, enter into a binding agreement with the payee, to
extend the time of payment, and such agreement, therefore,
could not operate to release the surety.
But if the law be otherwise, the fact in this case, that the
surety, with a full knowledge of the agreement having been
made, paid a part of the note, and promised to pay the residue,
would constitute a waiver of his release. Flynn, ffltfr, etc. v.
Mudd & Hughes et al., 27 111. 323.
Mr. Chief Justice Caton delivered the opinion of the
Court :
This is merely a question of evidence. The testimony of
the witness, Ingham, was abundantly sufficient to authorize
the court to find, that at the time the surety paid the thirty
dollars indorsed upon the note, and at the time he promised
that the balance should be paid, he saw the indorsements on
the back of the note. If he did see these indorsements, then
he knew all that we now know in relation to any agreement
to extend the time of payment, for there is not a particle of
proof of any such agreement, apart from the indorsement.
He saw the indorsement which is now relied upon for a
defense, and paid a part and ^promised to pay the balance,
with a full knowledge of every fact which he now insists
upon for a defense. He thereby waived all defense which
such facts would constitute, so that it is not necessary for us
now to decide whether the proof shows an agreement to
extend the time of payment or not.
The judgment is affirmed. Judgment affirmed.
404 Merryman v. David. [April T.
Statement of the case.
Thomas Meeryman
v.
Uei David,
1. Agent — his ditties and rights. An agent is bound to the utmost good
faith towards his principal ; he has no right to realize a profit out of the
fund intrusted to him.
2. So, where an agent is authorized to sell land of his principal, at a
fixed price, if he sells it for a higher price, he must account to his princi-
pal for the excess.
3. But, in the absence of fraud, he is not answerable to the purchaser
of the land for such excess.
4. Fraud — misrepresentation. Where one who has been negotiating
for the purchase of land from the owner, before having consummated his
contract of purchase, falsely represents to another that he is agent for
the owner, and sells the land at a higher price than he knows he can buy
it for, and thereafter does obtain title and conveys to his vendee, his mis-
representation about his agency does not constitute a fraud upon his vendee.
Appeal from the Circuit Court of Mercer county; the
Hon. Charles B. Lawrence, Judge, presiding.
In July, 1856, Uri David, being desirous of purchasing
lands in Mercer county, inquired of Merryman about lands
in his neighborhood. Merryman showed him a certain tract
of land which was then owned by one Gregg, who resided in
Ohio, Merryman representing to David either that he had
purchased the land or was a kind of agent for the owner, and
proposed to sell it to him at eight dollars per acre, amounting
to $1,920. David thereupon contracted to purchase the land
from Merryman at the price mentioned. In the August
following, Merryman executed a deied to David for the land,
with the understanding that another deed should be given in
lieu of that, when Merryman should get a deed from Gregg.
David at that time paid Merryman $590 in cash, gave hia
note for $40, payable in a few days, and two notes for $140,
each, with interest at ten per cent., one due September 1,
1856, and the other, September 1, 1857 ; and assumed to pay
1863.] Merryman v. David. 405
Statement of the case.
the sum of $1,000, to Gregg, to secure which Merrjman told
David he would have to give a mortgage to Gregg when he
obtained a conveyance from him.
It seems that Merryman was not, in fact, the agent of
Gregg in the sale of the land, but, previously to his sale to
David, had been negotiating with Gregg for the purchase of
it. Gregg had offered to sell the land to Merryman at $1,500,
provided he accepted the proposition within a specified time.
That time had elapsed before Merryman bargained the prem-
ises to David, but on the 15th of August, and soon after the
conveyance mentioned to David, Merryman procured a deed
from Gregg, and executed a mortgage on the premises to him,
to secure the sum of $1,000, the balance of $1,500 for which
he had purchased.
On the 29th of August, Merryman informed David that
he had obtained a deed from Gregg, and desired then to take
up the deed he had given him, and execute another, so that
the conveyance to David might bear date subsequent to that
from Gregg to Merryman. Merryman also requested David
to give two other notes for $140 each, in lieu of the two of
that amount he had previously given. David accordingly
gave up the deed he had received from Merryman, and exe-
cuted two notes for $140 each, bearing date on the 29th of Au-
gust, 1856, in lieu of those of the same amount he had for-
merly given him, and received a new deed from Merryman
for the land, bearing the same date of the last notes.
Subsequently to this transaction, David paid the mortgage
debt of $1,000, to Gregg, and the note of $40, and also the
sum of $135, upon the $140 notes. In the meantime, David
had expressed his entire satisfaction with his purchase, saying
that the land was worth thirteen dollars per acre, and he would
have given ten dollars instead of the price at which he pur-
chased, if he could not have obtained the land for less ; and
also expressed the belief that Merryman had made something
by the transaction, and he hoped he had.
Finally, however, David refused to pay the balance of the
purchase-money, and thereupon Merryman instituted suit to
recover the balance due on the two $140 notes.
4:06 Meebyman v. David. [April T,
Omnion of the Court.
Upon this state of facts, David exhibited his bill in chan-
cery in the court below, against Merry man, asking that Merry-
man be enjoined from prosecuting his suit upon the notes, and
insisting that by reason of the misrepresentations of Merry-
man in regard to his relations towards Gregg respecting the
land, a fraud had been perpetrated upon him, and that, there-
tore, Merry man ought to refund to him the excess that he had
paid him over the price which had been paid to Gregg for the
land.
An injunction was granted, which on the final hearing was
made perpetual, and the Circuit Court decreed that Merry man
stand charged as trustee for David, in the sum of $363.45.
From that decree Merry man prosecuted this appeal, and
assigns for error, that the court found the equities in the case
in favor of the complainant.
Mr. B. C. Cook, for the appellant.
Messrs. B. F. Burnett & Son, and W. C Goudy, for the
appellee.
Mr. Justice Walkeb delivered the opinion of the Court :
It appears from the evidence in this case, that appellant,
previous to the sale of the lands to appellee, had been cor-
responding with Gregg for its purchase, and had the right to
purchase on the terms proposed by Gregg, within a given
time. But that time had expired, and there is no evidence
that appellant had accepted the offer. It also appears, that
he represented that he had purchased the land, or was acting
as a kind of agent for the owner. He said to the sons of
appellee, that he was getting the same price which he gave
for the land. He fairly represented that the title was in
Gregg, and informed the sons of appellee that when he
obtained the title it would be subject to a mortgage of one
thousand dollars, and it seems that appellee agreed to pay it.
which he afterwards did. He also requested them, when he
1863.] Merryman v. David. 407
Opinion of the Court.
delivered the first deed, that it should be returned to be can-
celed, and another given when he obtained a deed from the
owner, which was afterwards done, and appellee's notes were
given up and new ones substituted. Appellant assigned as a
reason that it would not look well for his deed to appear on
record prior in date to the deed to him from the owner.
Appellee, at various times, and to different persons, expressed
himself as well satisfied with the purchase. He said the land
was worth thirteen dollars per acre, and that if appellant had
asked ten, he wTould have given it, instead of eight dollars per
acre. He said to different persons, that he supposed appellant
had made something on the purchase, and he hoped appellant
had. That he was satisfied with the purchase. He went on
and paid all of his notes to appellant, but one hundred and
forty-five dollars, after the purchase. His expressions of
satisfaction with his purchase, and the supposition that appel-
lant had made a speculation, were all after he purchased,
some of them as late as the spring following. There is no
evidence that the land was not worth thirteen dollars an
acre, as stated by appellee.
It seems that appellant at no time proposed to act as
appellee's agent in the purchase. If he professed to act as
the agent of any one, it was Gregg. It does not appear from
the evidence that appellant ever told appellee that he waa
selling to him at the same at which he purchased. Nor does
it appear that either of appellee's sons informed him that
appellant had so stated to them. Appellee, instead of sup-
posing he was getting the lands at the same price, declared
that he thought appellant would make something, and even
hoped he would. This seems to repel all presumption, that
he expected or believed that he was to have the lands at the
same that appellant gave for them. It also clearly shows
that appellee did not regard appellant as his agent in the
purchase. It is true that Mirrilla David testifies, that her
father thought appellant was Gregg's agent, and was getting
the lands the same as if the deed had been directly from
Gregg to him. But when this evidence is taken in connection
408 Meeryma-st v. David. [April T,
Opinion of the Court.
with appellee's declaration, it would seem that these declara-
tions only related to the title and not the price.
It seems, then, that the only thing in which appellee was
misled, was as to appellant being Gregg's agent. Has he
any interest in the relation that appellant occupied to Gregg ?
Appellant having assumed to be Gregg's agent, if recognized
as such, had no right to speculate upon his principal. He
was bound to the utmost good faith to his principal, and had
no right to realize a profit off of the fund with which he was
acting. Having received more than he accounted for to his
principal, if he was an agent, he would be liable to his prin-
cipal to refund the amount retained, beyond his compensation.
But the rights, duties and liabilities of an agent do not attach
to other persons than the principal. And in this case it is not
claimed that appellant was the agent of appellee. Nor can
appellant be liable to him as an agent. If appellant has
acted in bad faith with his principal, it does not concern
appellee.
He has acquired all that he purchased. Nor is there any
pretense that he was deceived as to the quality or value of
the lands, or the title. There was no misrepresentation made
as to quality, quantity or value of the land. Appellee pur-
chased at a price he was willing to give, and he seems to have
been well satisfied with the transaction. And we are unable
to perceive that he has sustained any injury. Had appelant
been his agent, it would no doubt have been different. If
any fraud was committed, it was upon the owner, and not upon
appellee as a purchaser. We are aware of no principle of
law or morals, that would render appellant liable to appellee
in this transaction.
The decree of the court must be reversed.
Decree reversed.
1863.] Bulson et al. v. The People. 409
Statement of the case.
Frederick Bulson et al.
v.
The People of the State of Illinois.
1. Mittimus — indorsing amount of bail upon the lack of it. It is not
essential to the validity of a mittimus issued by a committing magistrate
in a bailable case, that he should indorse upon it the sum in which bail
ought to be taken, if such sum appears in the body of the mittimus.
2. Bail — former conviction and holding to bail, not a bar. Where a
person who is accused of having committed a criminal offense has, by col-
lusion and contrivance of the witnesses, the complainant and justice of the
peace, been arrested and discharged on bail, he may be again arrested by a
warrant issued by another justice of the peace, and required to give bail
in a larger amount for the same offense.
3. Mistake — clerical mistake as to names in pleading. Where the
name Frederick Bulson was written in a pleading instead of Isaac Bulson,
and the pleading in all its parts showed that Isaac was intended, it was
regarded a clerical error, and did not vitiate.
4. Evidence — leading questions. Where the answer to a leading ques-
tion which is objected to, does no injury to the party objecting, he cannot
complain as to the leading form of the question.
5. Errors — reversal — all errors will not cause a reversal. A just
judgment will not be reversed, merely because a leading question is allowed
to be answered, although it may be error.
6. Record of a recognizance is a verity. After a recognizance which
was entered into upon the examination of a party charged with crime ,
before a magistrate who had jurisdiction of the offense, has properly
become a matter of record, the action of the magistrate cannot be im-
peached, nor the proceedings assailed.
7. Practice in the Supreme Court — abstracts. Where an abstract
of the record is wanting, the court will take the facts as they are presented
in the briefs, or the case will be most summarily disposed of.
Appeal from the Circuit Court of Knox county; the
Hon. Charles B. Lawrence, Judge, presiding.
On the 16th day of February, 1859, by collusion and con-
trivance between Isaac Bulson, Phineas Cragan and James
Soles, the said Bulson was arrested by virtue of a warrant
52— 31st III.
410 Bulson et al. v. The People. [April T.
Statement of the case.
issued by Soles, as a justice of the peace of Knox county,
upon the complaint of Cragan, under oath, charging Bulson
with having feloniously stolen a cow in said county.
Bulson was brought before the magistrate, Soles, and a pre-
tended examination was had, the witness, Cragan, testifying
substantially, that he knew nothing about the larceny charged.
The magistrate required Bulson to give bail in the sum of
fifty dollars for his appearance at the next ensuing term of
the Circuit Court of Knox county, to answer the said charge
of larceny. He, accordingly, entered into a recognizance in
pursuance of the requirement of the magistrate, which was
afterwards duly certified to the Circuit Court, and became a
matter of record therein, and thereupon was discharged, as
is claimed, from further arrest for said alleged offense.
These proceedings were had for the purpose of fraudulently
evading an arrest on the part of Bulson under a warrant whieh
he knew had been already issued against him, on the com-
plaint of the owner of the cow alleged to have been stolen,
before Giles Cook, another justice of the peace in the same
county.
Subsequently, by virtue of this warrant Bulson was again
arrested, and upon being brought before the magistrate, Cook,
such proceedings were had that Bulson was required to enter
into bail, with good and sufficient security, in the sum of five
hundred dollars, for his appearance at the then next term of
the Circuit Court of said county, to answer said charge, it
being the same alleged offense for which he had previously
been held to bail by the magistrate, Soles.
Bulson failing to enter into bail as required upon this second
examination, was committed to the county jail of Knox
county, by virtue of a warrant of commitment issued by
Cook, in the body of which was set forth the sum in which
bail might be given, but the magistrate omitted to indorse on
the mittimus the sum in which bail was required. Subse-
quently, on the 23rd of April, 1859, Bulson was discharged
from jail, upon entering into a recognizance before two
justices of the peace in said county, in the required sum of
J863.] Bitlson et al. v. The People. 411
Statement of the case.
five hundred dollars, with Frederick Bui son and James
Downing as his securities, conditioned for his appearance at
the proper term of the Circuit Court to answer the said charge
against him ; which last mentioned recognizance also was duly
certified, and became a matter of record in that court.
Isaac Bui son failing to appear according to the terms of his
obligation, a judgment of forfeiture was entered in the court
below, and on the 26th of July, 1859, a proceeding by scire
facias was instituted upon the second recognizance men-
tioned ; the said Isaac and his securities having previously
been discharged by the Circuit Court, on motion of the State's
attorney, from the recognizance entered into before the magis-
trate, Soles.
To the scire facias the defendants pleaded four pleas : first,
7ion est factum ; second, nul tiel record ; the third plea set
up that the supposed recognizance, upon which the scire facias
issued, was void by reason of the warrant of commitment
which was issued by the magistrate, Cook, not having indorsed
upon it the sum in which bail might be given, although such
sum did appear in the body of such warrant.
By the fourth plea, the defendants insisted the recognizance
upon which this scire facias issued was void, because of the
principal defendant, Isaac Bulson, having previously entered
into the recognizance already mentioned, upon his examina-
tion before the magistrate. Soles ; claiming that he could not,
legally, be required to enter into a second recognizance for
the same offense.
Demurrers to the third and fourth pleas were overruled.
Replications to the third and fourth pleas being filed, the
defendants interposed their demurrer to them.
The replication to the fourth plea is as follows :
And the said plaintiffs as to the said plea of the defend-
ants fourthly above pleaded, say, that plaintiffs, by reason
of anything in said plea by defendants alleged, precladi non,
because they say, that no valid and binding recognizance was
entered into by said defendants before the said James Soles,
as in said plea alleged, and that the same was and is void,
because the same was entered into by fraud and connivance
412 Bulson et al. v. The People. [April T.
Statement of the case.
between said defendants, Phineas Cragan and the said Jamea
Soles, in order to prevent the taking of a valid recognizance
in a proper amount for said offense ; that said offense, of which
said Bulson was accused, was for larceny of a cow of the value
of twenty dollars, subjecting said Bulson to punishment in
the penitentiary. That the bail required by said James
Soles, J. P., was but fifty dollars, by fraud and connivance
with said defendants.
That said defendants and said Phineas Cragan well knew
that a warrant had been issued to compel the attendance of
said Frederick Bulson before another justice of the peace to
answer for the same offense — and that, fraudulently conniv-
ing and colluding together, the said defendants and Phineas
Cragan procured the arrest of said Frederick Bulson, and
proceeded without procuring the attendance of any of the
witnesses having a knowledge of the facts of said case, and
without the examination of any witnesses having a knowledge
of the commission of said offense, fraudulently to procure the
taking of the recognizance in said fourth plea mentioned,
before the said James Soles, in the sum of $50, a sum inade-
quate to the nature of the offense. Wherefore, etc.
The demurrer to the replications having been disposed of,
issues were formed, and submitted to a jury, who, after hear-
ing the evidence, were instructed by the court, upon the law,
as follows, on behalf of the People :
That if the jury believe, from the evidence, that a warrant
had been issued by Esquire Cook for the arrest of Bulson for
the crime of larceny, and that Bulson well knew the same,
and sought to evade service of the same ; and that in order
to procure his enlargement by giving bail in an inadequate
amount, Bulson and his attorney, Bennett, fraudulently and
by collusion with Phineas Cragan, procured the arrest of
Bulson before Esquire Soles, and proceeded to trial without
procuring the attendance of the witnesses who had a knowl-
edge of the commission of the offense, and that the said
James Soles and the defendants and Phineas Cragan, in order
to prevent the taking of a valid recognizance in a proper
amount for said offense, fraudulently and by collusion per-
1863.] Bulson et al. v. The People. 413
Statement of the case.
mitted the said Bulson to enter into a recognizance in the
sum of fifty dollars to secure his appearance at court for said
offense, they will find the issues for the plaintiff.
The defendants then asked the court to instruct the jury in
their behalf as follows :
1. If the jury believe, from the evidence, that Bulson, the
accused, together with Cragan and others, went before James
M. Soles, to have an examination of the accused, because of
the prejudice of the people of Victoria against him, and that
they had no other motive in going before Soles ; and that
Soles acted in good faith in fixing the amount of the bail in
the sum of $50, then the jury will find for the defendants.
2. Unless the jury believe, from the evidence, that James
Soles, the justice of the peace who took the first recognizance,
acted fraudulently in taking the recognizance, they will find
for the defendants.
The court gave the first instruction as asked by defendants,
and the second, after modifying it so as to read as follows :
" Unless the jury believe, from the evidence, that James
Soles, the justice of the peace who took the first recognizance,
acted in fraudulent collusion with the defendants and Cragan
in taking the recognizance, they will find for the defendants.^
The jury found the issues for the plaintiffs. A motion for
a new trial and in arrest of judgment was overruled, and a
judgment entered against the defendants, from which they
took this appeal.
The principal questions arising under the assignment of
errors, are, first, whether the omission of the magistrate, Cook,
to indorse upon the mittimus the sum in which bail might be
taken, operated to vitiate that writ ; second, whether a party
accused of crime may be properly required to enter into a second
recognizance for the same offense ; third, whether the court
erred in giving the instruction on behalf of the People, and in
modifying the second instruction offered by the defendants.
Messrs. A. Tyler, and J. I. Bennett, for the appellants. ,
Mr. D. P. Jones, State's Attorney, for the appellees.
4rl4 Bulson et al. v. The People. [April T.
Opinion of the Court.
Mr. Justice Breese delivered the opinion of the Court:
This was an action by scire facias on a recognizance
brought in the Knox Circuit Court, and by appeal to this
court.
The pleadings in the cause present these questions : Is a
mittimus void, if the committing magistrate does not indorse
on it, in bailable cases, in what sum bail ought to be taken,
though in the body of it, such sum is specified ?
Second. Can an accused person who has, by collusion and
contrivance of the witnesses, the complainant and justice of
the peace, been arrested and discharged^ on bail, be again
arrested by a warrant issued by another justice of the peace and
required to give bail in a larger amount for the same offense ?
By section 206 of the criminal code, it is made the duty of
the judge or justice committing a person to jail charged with
a criminal offense, to indorse on the warrant of commitment,
in bailable cases, in what sum bail ought to be taken.
The object of this provision is, manifestly, to inform the
officer having the warrant, of the amount of bail proper to be
taken in the particular case, he himself having no power to fix
the amount. For this purpose, a strict compliance with the
law is not indispensable, so that the officer gets this knowledge
from the warrant. If it is conveyed to him, by the written
direction of the justice of the peace, appearing on the face, it
ought to be regarded as efficacious as if it was on the back of
the warrant. The limit of bail is fixed by the proper officer,
and a knowledge of it conveyed to the arresting officer by the
written direction of the magistrate in the body of the warrant,
and this, we think, is a sufficient compliance with the statute.
The third plea does not deny that the amount of bail wTaa
fixed by competent authority, nor that the officer took bail
in the amount fixed, but only denies that the amount had
been indorsed on the warrant, which was not sufficient.
Trimble v. The State, 3 Ind, 151, and cases cited in note.
The demurrer should have been sustained to this plea, but as
1363.] Bulson et al. v. The People. 41c
Opinion of the Court.
the issue upon it was found for the plaintiff, he is not injured
by overruling the demurrer.
Upon the other question, we can entertain no doubt. The
fact of collusion and connivance was distinctly found by the
jury, and we think correctly, according to the evidence. The
whole proceeding before Soles, was a made-up affair, the com-
plaint on oath of the larceny being made by one who was
employed as a tool by the friends of the accused, and who
stated on the trial that he knew nothing whatever of the
matter. The real party in interest, the owner of the property
alleged to have been stolen, had previously entered his com-
plaint before Cook, another justice of the peace, who issued a
warrant thereon, and such proceedings were had in the due
administration of the criminal laws of the State, as to result
in the subsequent arrest of Bulson, and in a demand of bail
in the sum of five hundred dollars, the offense charged being
punishable by confinement in the penitentiary on conviction.
When these proceedings were had before Cook, the former
conviction of the same offense before Soles, was not alleged
or set up by way of defense to the proceeding, but the same
was acquiesced in by the aecused. At this subsequent investi-
gation, was Lhe time to urge his previous conviction and hold-
ing to bail. It is now too late to urge any such objection.
Nor was the first investigation conclusive. In the matter qf
John Mclntire, 5 Gilm. 422. The justice had jurisdiction
of the offense charged, and his action cannot be impeached
now, for supposed illegality, as it is now a record of this
court, and cannot be assailed.
The name Frederick, in the replication to the fourth plea,
is evidently a clerical error. Pardee v. Zindley, ante, 174.
The replication in all its parts shows Isaac Bulson was the
person arrested, and not Frederick. That name is in the
replication by mistake, as is very evident.
The jury have found the collusion charged, and we are
satisfied with the finding. That question was fairly and fully
submitted to them, and we will not disturb the verdict.
The question permitted the State's attorney to ask Soles, if
any of the witnesses sworn before him on the examination,
416 Bkown v. Gorton et al. [April T.
Statement of the case.
swore that Isaac Bulson stole the cow, may be objectionable
as leading, but as the answer was in the negative, that he
could not tell what they swore to, but thought they did not
swear directly that he stole the cow, no injury resulted to the
defendants from the question in the form put, even if leading.
At any rate, the merits being so clearly with the appellees,
we would not reverse a just judgment for an error so slight
as this, if this be an error.
We can perceive no objections to the instructions given,
nor to the modification of the defendants' second instruction.
As modified, it declared the law of the case under the issue
made by the fourth plea.
We have not been furnished in this case with any abstract
of this record, which is very voluminous and very unskillfully
made up, and would have been well warranted in disposing
of the case in a summary way, for want of an abstract. In
future cases, where abstracts shall be wanting, we will not
search into the record to find the facts, but take them as we
find them in the briefs, or dispose of the cases in the most
summary way.
There being no error in this record, the judgment is affirmed.
Judgment affirmed.
John M. Bbown
V.
James B. Goeton et al.
Action ok injunction bond — when the award of damages Mould be
made. It is not essential, to authorize a recovery upon an injunction bond,
that the costs and damages should be awarded upon the dissolution of the
injunction. A recovery in an action upon the bond would be an award of
damages within the condition.
Writ of Error to the Circuit Court of the county of
Lake ; the Hon. George Manierre, Judge, presiding.
This was an action of debt instituted in the court below,
1863.] Brown v. Gorton et (to. 417
Statement of the case.
by John M. Brown against James B. Gorton and John H.
Cotes, upon an injunction bond, in which was the following
condition :
" The condition of the above obligation is such, that whereas,
Jie above named James B. Gorton has this day filed in the
office of the clerk of the Circuit Court of Lake county, afore-
said, his bill of complaint on the chancery side of said court,
against the above named John M. Brown, as defendant, pray-
ing, among other things, that an injunction may be issued out
of and under the seal of said court, to restrain the said Brown
from doing certain acts and things in said bill of complaint
particularly mentioned. And whereas, also, a writ of injunc-
tion is about to issue out of said court, in pursuance of an
order of the master in chancery of the said county of Lake,
which is indorsed upon the said bill of complaint, agreeably
to the prayer of said bill. Now, therefore, if the said James
B. Gorton shall well and truly pay, or cause to be paid, to
the said John M. Brown, his heirs, executors, administrators
or assigns, all such damages and costs as shall be awarded
against him, the said Gorton, in case the said injunction shall
be dissolved, then this obligation to be void, otherwise to be
and remain in full force and effect."
The declaration was objected to on demurrer, because it
contained no averment that any costs or damages were
awarded against the defendants upon the dissolution of the
injunction. The demurrer was sustained in the court below,
and a judgment for costs was entered in favor of the defend-
ants. The plaintiff thereupon sued out this writ of error, and
presents the question, whether it is necessary, in order that a
recovery may be had upon an injunction bond, that the
damages and costs should be awarded upon the dissolution oi
the injunction.
Mr. W. S. Searls, for the plaintiff in error.
Messrs. Glover, Cook & Campbell, for the defendants in
error.
53— 31st III.
418 King et al. v. McDkbw et al. [April T.
Statement of the case.
Mr. Chief Justice Caton delivered the opinion of the
Court :
This was an action on an injunction bond, conditioned in
the form specified in the statute. The defense presented is,
that upon the dissolution of the injunction, the court awarded
no damages or costs to be paid by the complainant to the
defendant in that suit, for having wrongfully sued out the
injunction. The case of Hibbard et al. v. McKindley et al.,
28 111. 240, is precisely in point, and decides this question
against the obligors, and we see no reason to change our
opinion as there expressed.
The judgment is reversed, and the cause remanded.
Judgment reversed.
George King et al.
v.
James MoDrew et al
1. Assessment of personalty for taxation — in what county it
must be done. Under the revenue law of 1853 personal property must be
listed for purposes of taxation, in the county, town or district where the
owner resides, notwithstanding the property itself may remain, and be in
use, in another county, as in case of farming implements, stock, etc., upon
a farm.
2. Execution cannot be awarded against a county. It is erroneous to
sward an execution against a county, in a decree in chancery, as well as in
a judgment at law.
Writ of Error to the Circuit Court of Kankakee county ;
the Hon. Charles R. Starr, Judge, presiding.
This was a bill in chancery exhibited in the court below,
by James McDrew, collector of taxes for Kankakee county,
George Hensler, collector of the town of Kankakee, in that
county, the Board of Supervisors of Kankakee county, and
1863.] King et al. v. MoDbew et at. 419
Statement of the case.
Lemuel Milk, against George King, collector of Iroquois
county, W. H. Ingalls, collector of the town of Chebanse,
in that county, and the Board of Supervisors of Iroquois
county, to determine in which county, Kankakee or Iroquois,
the said Milk, a resident of Kankakee county, should list for
taxation, personal property owned by him, but remaining and
in use on his farm in the town of Chebanse, in the county of
Iroquois.
The bill was filed in March, 1862, and it is alleged that
Milk, the complainant, then, and for some years previously
had, resided in Kankakee county. That he owned a farm in
the county of Iroquois, on which he was engaged in farming
and stock raising. That other persons were connected with
him in business on the farm, and had a share of the crops ;
that said Milk was on the farm more or less every week, and
usually remained from Monday to Saturday. That he had
sheep, horses, cattle, hogs, wagons, plows, etc., on said farm ;
that both said counties claimed that he should list said per-
sonal property in them respectively, for the year 1861 ; and that
he had listed said personalty so situated in the county of Iro-
quois, in the county of Kankakee, and was willing to pay the
taxes thereon to the county entitled thereto.
An injunction was sought and granted, in order to enjoin the
county of Iroquois from collecting a tax upon said property.
The cause was submitted for hearing, without formal plead-
ings, on the case as presented in the bill, and the Circuit Court
decreed that the tax should be paid in the county of Kanka-
kee, the county of the residence of the owner of the property,
and that Iroquois county be forever enjoined from collecting
the tax which had been assessed thereon.
The defendants below thereupon sued out this writ of
error.
Messrs. Wood & Long, for the plaintiffs in error.
Mr. Thomas P. Bonfield, for the defendants in error.
420 King et al. v. McDkew et al. [April T.
Opinion of the Court.
Mr. Justice Walker delivered the opinion of the Court :
This is a contest as to which is the proper county, in which
personal property belonging to complainant, should be listed
for taxation. He resided in Kankakee county, but owned a
farm in Iroquois county. He had furnished it with imple-
ments and stock necessary to prosecute the business of agri-
culture. Whilst he owned the property, other persons resided
upon the farm and assisted in conducting the business, and
were entitled to share in the profits. Complainant gave his
personal attention to the business, remaining on the farm dur-
ing the week, but returning home on Saturdays. The reve-
nue officers of each county claimed the right to assess the prop-
erty for taxation. It was accordingly assessed in each county,
and the tax duly extended, and a warrant issued to a collector
in each county. The bill was tiled to stay the collection of
the tax in one or the other of the counties. On a hearing in
the court below, a decree was pronounced restraining the collec-
tion of the tax assessed in Iroquois county, decreeing the pay-
ment of the costs by that county, and awarding execution for
their collection. The cause is brought to this court for the
purpose of reversing the decree.
The fourth section of the revenue law of 1853, (Scates'
Comp. 1049) provides that, " Real property shall be listed in
the county, town or district where it belongs; peisobai.
erty, moneys or credits, except such as is reoiared f<o be IisU>
otherwise, shall be listed in the county, town or district where
the owner resides." This language is clear, explicit and
unambiguous, and will not admit of construction. Unless
this property is of the class excepted from this provision,
the law is peremptory in requiring it to be listed in the
county, town or district, where the ;omplainant resides. The
property falling within the except i is obviously such a&
:2 held by guardians, agents, and m other specified fidu-
ciary relations. But we have beeii unable to find any pro-
vision which would require this property to be listed in
Iroquois county. It is not claimed that it is owned by those
residing on the farm where it is situated, but if it was, the
1863.] King et at. v. McDkew et al. 421
Opinion of the Court.
property is not listed in their names, as agent or otherwise.
Under this provision the court below could not have done
otherwise than enjoin the collection of the taxes assessed in
Iroquois county.
In the case of Mills v. Thornton, 26 111. 300, this statute
was not referred to, but the case was decided apon che x>rty-
third section of the school law (Scates1 Comp. 445), which
authorizes a school tax to be levied by the directors, on all of
the property in the school district, and to have the same col-
lected. In that case, for aught that appeared, the property
may have been permanently in the district within which it
was listed, and if so, under this provision of the school law,
it was liable for a school tax. The general rule is there recog-
nized, that the proper place to list personal property is the
residence of the owner ; but for school purposes, if permanently
situated in the district, it would be liable to be listed for school
taxes; but for county and other purposes, not forming an
exception to the rule, it must be listed at the place of ;he
residence of the owner.
But the court erred in awarding execution against the
county for the collection of the costs. It is provided by the
twentieth section of the chapter regulating judgments and
executions (Scates' Comp. 300), that nothing in that chapter
shall authorize any execution to be issued against the lands
or other property of any county of this State. But it is made
the duty of the county authorities to order a warrant to be
drawn upon the treasurer for the amount of the judgment.
It is true that the section relates to judgments, but the prohi-
bition from awarding execution relates to all cases, and is
sufficiently comprehensive to embrace executions upon decrees,
and they are manifestly within the spirit of the enactment.
The decree of the court below is reversed so far as it awards
execution against Iroquois county, but is affirmed in all othe*
things.
Decree modified.
4:22 White v. Walker. [April T.
Syllabus.
Alexander White
v.
Martin O. Walker.
1. Evidence — wi^ itiall determine its purpose. It is not proper for the
court to instruct a jun 1? what special and exclusive purpose certain evi-
dence wafe introduced upon the trial of a cause, when it could be legiti-
mately applied to another and different purpose.
2. So, in an action against a guarantor upon a lease, one of the defenses
interposed being an alleged new agreement entered into between the lessor
and lessee, by parol, whereby less rent was reserved, which.it was alleged,
had been paid, it was competent for the defendant to prove that by
reason of raising the grade of the street in front of the premises, they had
become untenantable or less convenient, for the purpose for which they
were leased, by way of showing to the jury, perhaps, that to have been
one of the inducements for the lessor to make a new contract ; and the
court had no right to exclude such evidence, and to tell the jury it was
offered for the sole purpose of avoiding the payment of full rent under the
lease and guaranty.
3. Sealed instruments — of their discharge, whether by parol or under
seal. It was an old maxim of the common law that an obligor could only
be released, by an instrument of as high dignity as that by which he was
bound— being obligated by a seal, he could be released only by an instru-
ment under seal.
4. Technically, this may be the rule of modern times, but practically, it
is not enforced.
5. It is of frequent occurrence that in an action of debt on a bond, or
other sealed instrument, the defendant under his plea of payment, proves
by parol, the actual receipt by the obligee, of the money due on the bond,
and which would operate as a release and discharge of the bond.
6. So with a debt secured by mortgage, a release of such debt need not
be under seal. Ryan v. Dunlap et al., 17 111. 40.
7. And it may be that in every case, where parties are bound to one
another by writing under seal, the obligors will be discharged by parol
proof of facte ; if sufficient in themselves to constitute a discharge. And
this, more especially, in cases where 3ome one or more of the parties are
sureties only.
In all contracts for chattel interests, evidenced by sealed instruments,
performance in pais will, generally, discharge all the parties to it.
9. So in a lease for rent at a stipulated sum, and guaranteed, as in this
case, a new parol agreement -with the lessee, will discharge him.
10. Consideration — what is sufficient. Where a person leased premises
to be used as » boarding house, and by reason of occurrences subsequent to
1863.] White v. Walkek. 423
Syllabus.
the leasing, a right to sue the lessor for damages occasioned thereby, for
loss of business or otherwise, has arisen, such right of action would be
waived by a new agreement between the lessor and lessee in regard to such
leasing ; and this would be a sufficient consideration for the new agree-
ment.
11. Remaining in the house was a detriment to the lessee, under the
circumstances, and this would be a good consideration for a new agreement
between him and his lessor.
12. Where, after the death of the lessee, the lessor made a new agree-
ment with the widow of the lessee, upon whom no obligation rested, as the
widjw, to continue in possession, and at a less rent than was originally
reserved ; it being of interest to the lessor that the premises should be
occupied, and the condition of the premises having become such, after the
original leasing, that it would likely be difficult to procure a tenant, would
constitute a sufficient consideration for this new agreement.
13. The question in such case is not, what was the amount of consider-
ation for the new agreement, but, was there any consideration at all.
14. Equitable estoppel — when it applies. But if there were no con-
sideration for the new agreements between the lessor and his lessee, and
with the widow of the lessee, still, they having been executed, and the
guarantor on the original lease having thereby been led into a line of con-
duct which must be prejudicial to his interests, by the admissions of the
lessor, as in declining an indemnity from the lessee, an equitable estoppel
arises which will prevent a recovery against the guarantor.
15. The rule seems to be, that a promise to forgive a debt, or to for-
bear its collection, if either temporarily, or for an indefinite period, unsup-
ported by any consideration, though ineffectual as a defense, viewed merely
as an agreement, yet if the surety has been induced by such an assurance,
to neglect any of the means which might have been used for his indemnity,
the promise may have that effect as an estoppel, which it wants as a con-
tract, and amount to a defense against any subsequent action brought by
the creditor.
16. Guarantor — released by a new agreement. If a lessor of premises
make a new leasing thereof to the same or another lessee, during the term
of a prior lease, a guarantor upon the original lease would become thereby
discharged from his liability.
17. Jury — what it shall determine. Whether a new agreement between
the lessor and lessee, regarding the terms of renting the premises, consti-
tutes a waiver, or surrender of the original lease, and so intended by the
parties, should be left to the jury.
18. Guarantor — NOTICE. Where a guarantor upon a lease is liable
secondarily, only, depending upon the default of the lessee, and the fact of
non-payment resting entirely within the knowledge of the lessor, it would
geem but reasonable the guarantor should have notice of the default, before
the commencement of a suit against him, so that he might pay what was
due, without suit, or procure indemnity.
424 White v. Walker. [i^pril T.
Briefs of Counsel.
19. Interest — when recoverable. Interest is recoverable as damages
only, except when provided for in the bond or agreement. No damages
could result to a party consenting to a postponement of payment, so no
interest would be recoverable by the consenting party.
20. Although a lessee is bound to pay interest on installments of rent,
from the time they become due, when nothing has been done by the lessor
to prevent the regular payment of the installments, yet where new agree-
ments have been made, affecting the amount of the rents and the time of
payment, even if such new agreements are not valid and binding, for the
want of a consideration, the lessor ought not to demand interest, certainly
not without a demand for the money, and then interest from the time of
the demand.
Appeal from the Superior Court of Chicago.
On the 11th of April, 1857, Martin O. Walker, the appellee,
executed a lease, under seal, for certain premises in the city
of Chicago, for a term of two years, to William J. Napier, at
a certain rent stipulated in the lease.
Alexander White indorsed upon the lease his guaranty for
the payment of the rent at the time it should become due.
Walker instituted an action of assumpsit in the court below,
against White, the guarantor, alleging the non-payment of
the rent. The pleadings and proof in the cause, and the
various rulings upon the trial below, are sufficiently set forth
in the opinion of the court.
Messrs. Barker & Tuley, for the appellant.
The making of a new lease to the lessee during the term of
the former lease, operated as a surrender, and discharged the
guarantor. 38 Law & Eq. R. 472 ; 2 Piatt on Leases, 506 ;
WoodfalPs Land, and Ten. 253, and cases cited ; 1 A. & E.
136, (28 E. C. L. 85); 4 Barn. & Cres. 922, 938; 5 ib. Ill;
and this independently ol the intention of the parties ; 13
Mees. & Wels. 285, 302, 306 ; and though the second lease
be by parol; Thomas v. Cook, 2 Starkie, 409; 3 E. Com.
Law R. 466. The landlord cannot grant a new lease until the
old lease is surrendered. WoodfalPs Land, and Ten. 253.
2. The new leasing to the widow of the lessee determined
the estate under the former lease.
1863.] White v. Walker. 425
Briefs of Counsel.
The widow, as such, had no right to retain the possession ;
the residue of the term, after the death of the lessee, vested
in the personal representatives. 2 Piatt on Leases, 372.
The leasing to the widow released the personal representa-
tives of the lessee from liability for rent accruing after that
time. Thomas v. Cook, 2 B. & Aid. 119, (4 E. C. L. 428).
If the lessor allows another to occupy so that he who has a
right, cannot get possession, it is a surrender by operation of
law. 2 Car. & P. 268, (12 E. C. L. 565).
3. It was for the jury to determine, from the facts, whether
or not Walker accepted a new tenant, and the court erred in
excluding testimony to that point from the jury, and in not
giving the second instruction asked for by defendant below.
Woodcock v. Nuite, 21 E. C. L. 259, (8 Bingham, 170) ; Jones
v. Bird, 7 E. C. L. 280 ; 5 B. & Aid. 850, (4 E. 0. L. 428).
4. That the court erred in the first instruction of plaintiff
below; that the jury should disregard all evidence in the
cause tending to show a discharge of the covenants ; that any
proof thereof must be in writing, and under the seal of the
party. The lease, though under seal, might be discharged by
parol. Parker v. Pratt, 15 111. 568 ; Peel v. Totloch 1 Bos.
& Pull. 419.
Messrs. McAllister, Jewett & Jackson, for the appellee.
The court below properly excluded evidence tending to
show that the premises had become untenantable by reason
of the raising of the street to grade, subsequent to the making
of the lease. There being no particular agreement to put or
keep the premises in repair, the tenant took them for better
or for worse, and the lessor was under no obligation to repair,
Cleves v. Willoughby, 7 Hill, 90 ; Munsford v. Brown, 6
Cowan, 475 ; Corwyn's Land, and Tenant, 185 ; Taylor's
Land, and Tenant, sees. 327, 328; Westlake v. DeGraw, 25
Wend. 669.
The evidence of the subsequent leasing was properly ex-
cluded ; the terms of a ;ease under seal cannot be varied by
parol. Chapman v. McGreio, 20 111. 100.
54— 31st III.
4:26 White v. Walkek. [April T.
Briefs of Counsel.
The second instruction for the plaintiff is sustained by the
case of Walker v. Hadduck, 14 111. 399.
The acceptance, merely, by the landlord, of a new tenant,
does not annul the lease to a former occupant. It may be,
however, if it is so agreed by the parties ; but no new agree-
ment between a landlord and tenant, for the substitution of
another tenant, or any other act of a landlord which can be
referred to a different motive, will amount to a surrender.
Taylor's Landlord and Tenant, sec. 516.
The agreement to substitute must be mutual, otherwise the
tenant will not be discharged from his liability. lb., sec. 517.
Mr. Melville W. Fuller, for the appellant, in reply.
1. Whether the agreement by Walker with Napier, to take
less rent than had been reserved, be considered as operating
upon the old lease, or as constituting a new one, the court
erred in excluding the evidence thereof, and in giving plain
tiff's first and third instructions.
If a new leasing, it was a complete defense. Taylor v.
Hilary, 1 C. M. & R. 741 ; Bethune v. Dozier, 10 Georgia,
235, and cases cited.
If an agreement merely changing the terms of the old lease
as to the amount of rent to be paid monthly thereon, proof
of it was clearly admissible.
The evidence was excluded on two grounds :
(a) That a parol agreement can never be shown at law in
defense to a sealed instrument.
(b) That the alleged new agreement was without consid
eration.
(a) But the new agreement in this case was fully executed,
and an executed parol agreement can always be shown at law
to defeat a recovery on an instrument under seal.
This is because it is not the agreement alone, but the thing
done under it, that is relied on. Dickinson v. Commission-
ers, etc., 6 Porter (Ind.) 128. The opinion in this case dis-
cusses and distinguishes all the leading authorities. Carpen-
ter v. King, 9 Metcalf, 511.
1863.] White v. Walker. 427
Briefs of Counsel.
And it lias been held in this State, that defenses of similar
character may be made at law, as well as equity. Flynn v.
Mudd, 27 111. 323 ; Davis v. People, 1 Gilm. 409.
Chapman v. McGrew} 20 111. 101, is clearly distinguishable,
because there the agreement was executory, which is the pre-
cise point on which all the cases turn, and because the security
in that case was a co-contractor.
(b) Was there consideration ?
Benefit to one party, or detriment to the other ; the waiver
of any legal or equitable right ; the giving up a suit when
the result is doubtful ; the compromise of a doubtful claim,
no matter where the right actually turns out to be; either of
these forms sufficient consideration. 1 Parsons' Cont. 357,
364, 369; McKinley v. Watkins, 13 111. 140.
In consideration of Walker's agreement, Napier waived
certain legal or equitable rights he had in the premises, aris-
ing from the breach of the implied covenant for quiet enjoy-
ment, and the destruction of the use of the premises for the
purpose for which they were leased.
The covenant for quiet enjoyment is implied under the
word " demise." Woodfall's Land, and Ten., p. 98. Which
is broken by any description of annoyance which prevents
the enjoyment of the property in so ample a manner as con-
tracted for. lb. 514.
It would seem that a public invasion of the enjoyment is a
breach. Gibson, C. J., 2 Jones (Pa.) 80 ; Peters v. Grubh,
9 Harris, 455.
The rent ought to be abated where the beneficial use is
destroyed. Brown v. Morris, 2 Bro. Ch. Ca. 311 ; 8 Bac.
Abr., tit. Kent ; Gilbert on Rents, 147, 148.
It is an implied condition that house should be fit for habi-
tation, and tenant can quit, without notice, when house is so
nfested with bugs as to be untenantable, or its walls are
so dilapidated as to be dangerous, or the drainage is so insuffi-
cient as to fill it with an intolerable stench. Smith v. Mar-
rable, 11 M. & W. 5 ; Edwards v. Ethrington, Ry. & M.
268 ; Collins v. Barrow, 1 Mo. & Rob. 112.
And though the rule may be now considered more rigid aa
428 White v. "Walker. [April T.
Briefs of Counsel.
against the tenant, yet we contend that such is still the law
where the leasing is for a particular purpose, as in this case.
At all events, Napier compromised what was a reasonable
claim, and it is immaterial how the right might have been
eventually determined. McKinley v. Wathins, 13 111. 140,
and cases cited.
Mutual promises, however, need no extrinsic consideration.
1 Smith's Leading Cases, 465, and cases cited.
And, upon this ground, if no other, the agreement was
binding.
(c) Thus much as between Walker and Napier, for aa
between White and Walker, the principle of equitable estoppel
settles the question. 1 Smith's Leading Cases, 466 ; 2 Amer.
L. C. 175 ; Carpenter v. King, 9 Met. 511.
White was offered security by the Napiers, which he de-
clined to take, because he relied on Walker's agreement.
2. The parol agreement was a waiver of performance of
the covenants of the lease ; and a waiver of performance of a
contract by one party may always be given in evidence by
the other, in answer to an action brought for its non-fulfill-
ment. 1 Smith's Lead. Cas. 463, and cases.
3. The evidence was also admissible to defeat the recovery
of interest. See post
2. The court erred in refusing to allow the defendant to
prove the value and condition of, and the facts in reference to,
the furniture offered to White as security.
The court, by this ruling, cut the defendant off from prov-
ing the estoppel which rendered the agreement in question
valid by supplying the want of consideration (if it lacked that
element of validity), and then shut the agreement out, on the
ground that it was without consideration !
3. The court erred in giving plaintiff's second instruction.
Interest, except when provided for in the instrument, is
given as damages for delay in payment.
Consent is incompatible with injur}7, and no one who causes
or sanctions the breach of an agreement can recover damages
for its non-fulfillment. 1 Smith's Leading Cases, 463.
The non-payment of the full amount of the installments of
rent, as they matured, was by consent.
1863.] White v. Walker. 429
Opinion of the Court.
4:. The declaration should have averred, and the proof
shown, notice to White, the guarantor, of Napier's default.
Cox v. Brown, 6 Jones (Law) N. C. 101, and cases cited ;
Lewis v. Bradley, 2 Ired. R, 303, and cases cited.
5. The agreement with Mrs. Napier, after her husband's
death, at $50 per month, was clearly a new leasing and a
surrender of the old one. At least this was a question for the
jury, and erroneously taken from them by the court, which
also erred in refusing to give defendant's second instruction.
Doe ex dem. Lord v. Crego, 60 Eng. C. L. R. (6 M. G. & S.),
89, is decisive of this question.
Mr. Justice Breese delivered the opinion of the Court :
This was an action of assumpsit brought by the appellee
against the appellant in the Superior Court of Chicago, on the
following guarantee : " I hereby guarantee the payment of
the rent to become due on the within lease on the days the
same becomes due. Chicago, April 13, 1857." This writing
of guarantee was indorsed on the lease, vhich bore date,
April 11, 1857.
The defendant pleaded the general issue, with notice of a
special defense, arising under the statute of frauds and perju-
ries, which it is not necessary further to notice ; also, want of
consideration, payment, and the following facts :
That after the making of said lease, and sometime in the
fall of the year 1857, or before that time, the street in the
city of Chicago, adjoining the said demised premises, was, by
said plaint? #, or by his, said plaintiff'' s, consent, raised to grade ;
that is to say, the sai- 1 street was raised by adding and putting
on of earth and stones sevci '<! feet above the height and con-
dition it was in wiion said remises were leased by plaintiff
to said Napier as in said declaration mentioned : whereby and
by means whereof, a nuisance was created by the water, dirt
and filth which flowed in and upon the basement story of the
house, situated upon said premises, at all times ; and oftentimes
covering the basement floor of said house with several incheh
of water, by reason of which nuisance, caused by the con
4:30 ' White v. Walkee. [April T,
Opinion of the Court.
duct of said plaintiff, the said premises became untenanta-
ble, and the continued occupation of said premises, by reason
of the flowing in of said water, dirt and filth upon such
premises caused by the raising of said street, became and was
at great risk and danger to the health and comfort of said
lessee, said Napier and his family, and produced an eviction
of said lessee by said plaintiff which would have justified
said lessee in vacating said premises ; and that at and about
that time, to wit, on or about the 1st day of December, A. D.
1857, the said plaintiff did agree to and with said Napier,
lessee, in consideration of the foregoing facts, and in con-
sideration that said lessee was deprived of the beneficial enjoy-
ment of said premises, by reason of the raising of said street to
grade, as aforesaid, and in consideration and because the said
lessee had for some months previous thereto lost his boarders,
(the said house having been rented for and used as a boarding
house), because of the said nuisance, and because of the
failure of said plaintiff to do certain repairs, and make certain
drains, which he, plaintiff, agreed before that time with said
lessee to do and make; and for other good and sufficient
considerations, that he, the said plaintiff, would, from and
after that time, to wit, the making of said agreement, reduce
said rent for said premises to eighty dollars per month, and
would from that time, and for the remainder of said term,
accept and receive of and from said lessee the sum of eighty
dollars per month, as and for full satisfaction and payment of
the rent of said premises ; and that this defendant should not
after that time be liable for, or called upon to pay any addi-
tional rent to said eighty dollars per month, so agreed to be
paid by said lessee, and agreed to be accepted by said plain-
tiff, as aforesaid, and that at the time of the making of the
said last mentioned agreement, as to said eighty dollars per
month, between said plaintiff and said lessee, all the rent
before that time, due and payable on said lease, had been paid
by said lessee to said plaintiff, and that the said lessee did,
from and after the making of said agreement as to eighty
dollars per month, and until his, said lessee's decease, (which
occurred some time in the spring or summer of the year
1863. J White v. Walker. 431
Opinion of the Court.
1858,) pay to said plaintiff, and said plaintiff did receive of
and from said lessee, the sum and rate of eighty dollars per
month as and for full satisfaction and payment of all rent
becoming due on said premises during said time, to wit, from
the making of said agreement to the decease of said lessee }
and that after the decease of said lessee, the widow of said
lessee, not being administratrix or executrix of said lessee,
or having any right or authority to take possession of or
control of the estate of the leasehold interest of said lessee in
said premises, which facts, and also the fact of said decease,
were well known to said plaintiff, did take possession of and
occupy said premises with the consent and permission of said
plaintiff ; and did, from and after the decease of her said hus-
band, and until the 1st day of August, 1858, pay to said
plaintiff, and said plaintiff did accept from said Mrs. Napier,
widow, the sum of eighty dollars per month as rent of said
premises ; and that on or about the said 1st day of August, the
said premises having become still more untenantable and
unbeneficial by reason of said nuisance, and in consideration
thereof, and for other good and sufficient considerations, the
said plaintiff did agree, to and with the said Mrs. Napier,
widow, to accept and receive from her, the said Mrs. Napier,
the sum of fifty dollars per month from said 1st day of
August, until the expiration of the term in said lease men-
tioned, as rent for said premises, and said Mrs. Napier did pay
to, and said plaintiff did receive from her, the sum of fifty
dollars per month for each and every month from said 1st
day of August, until the expiration of said term in said lease
mentioned, as and for and in full of the rent of said premises
for said time. That from and after the decease of said lessee,
and until the expiration of the said lease in said declaration
mentioned, said premises were worth, and of the value not
to exceed fifty dollars per month of said time, which sum or
rate of fifty dollars has been fully paid to said plaintiff.
The cause was tried on the general issue and notice, and
the jury found "the issues" for the plaintiff, and assessed
the damages at eight hundred and sixty-three dollars and
432 White v. Walker. [April T
Opinion of the Court.
sixty-five cents. A motion for a new trial was entered, which
was overruled and a bill of exceptions signed, containing all
the evidence in the cause. The case is brought here by
appeal, and the following errors are assigned and relied on,
as grounds for the reversal of the judgment :
The court erred in sustaining each and all of the several
motions of plaintiff below, to exclude from the consideration
of the jury all the evidence given on the part of defendant —
as to the untenantable condition of the leasehold premises
— as to alleged agreement with William J. Napier, by plain-
tiff, for taking a less monthly rent than that described in the
lease, and all the evidence of the alleged agreement between
Mrs Napier to the same effect, and also all evidence tending
to show a surrender of the lease in question ; in excluding
said evidence, and each and every part thereof, from the
jury.
That the court erred in giving the instructions by the
court given on behalf of the plaintiff, and in giving each of
them.
That the court erred in refusing to give the instructions
asked by the defendant, and numbered 1, 2, and 3, and each
of them.
That the court erred in overruling the motion for a new
trial, made by the defendant below.
The instructions were as follows, for the plaintiff :
1. The jury in this cause will disregard all the evidence
offered in this cause tending to show a discharge of the
covenants to pay rent reserved in the lease offered in this
cause, as it would be improper for them to consider any
proof for that purpose unless such proof is in writing and
under the seal of the party. •
2. In this cause, the plaintiff will be entitled to interest
on all rents not paid, from the time the same became due and
remained unpaid, at six per cent, per annum.
3. All proof giving in this cause, showing the condition of
the said premises in consequence of the raising the grade
of the street by the city of Chicago in front of the said
1863.] White v. Walkeb. 433
Opinion of the Court.
premises — offered for the purpose of avoiding the payment
of full rent under the lease and guarantee in this suit — will
be disregarded by the jury.
It appears from the record, that the principal controversy
was upon the special facts stated in the fourth branch of the
notice, and much testimony was produced on both sides, on
the points presented by it.
Those facts were offered to show, that after the execution
of the lease, the premises having been rented for a boarding
house, by reason of certain improvements caused and carried
on by the authority of the city, they became less habitable
than they were when possession was taken under the lease,
and that the business, to which the premises were devoted,
could not be carried on successfully, or with convenience, or
safety to health, on account that sufficient drainage, rendered
necessary by those improvements, was not provided by the
lessor. Under these circumstances, the defendant attempted
to show, that in consideration of all these things, the parties
to the lease, the lessor and lessee, made a new agreement,
which in effect, superseded the original lease, and which new
agreement had been fully performed by the lessee, whereby
the defendant's liability, as guarantor, had been released and
discharged.
After testimony had been fully heard tending to establish
such a case, the court instructed the jury to disregard all
the evidence offered tending to show a discharge of the
covenants to pay the rent reserved in the lease, as it would
be improper for them to consider any proof for that purpose,
unless such proof was in writing, and under the seal of the
party, and they were also instructed to disregard all the proof
in the cause, showing the condition of the premises, in con-
sequence of raising the grade of the street in front of the
premises, which was offered for the purpose, as the court
declared, of avoiding the payment of full rent under the
lease and guarantee.
Why the court should undertake to say, for what special
and exclusive purpose such proof was offered, we cannot dis-
cover, since, as we look at the case, it might have been offered
55— 31 st III.
434 White v. Walkek. [April T.
Opinion of the Court.
and received by the court, as showing facts calculated to
operate upon the sense of justice of the lessor to make a new
agreement at a reduced rate of rent. At any rate, it was
competent evidence to go to the jury for such purpose, and
to be used by the defendant, to bring the minds of the jury
to that conclusion. It was not for the court to say for wThat
special and exclusive purpose such evidence was introduced,
if it could be legitimately applied to another and different
purpose. The court says it was offered for the sole purpose
of avoiding the payment of full rent under the lease, when
the defendant might properly insist it was for the purpose of
showing, they were the inducements operating with the lessor,
not to reduce the rent, but to make a new agreement about
the rent, and it was a fair question for the jury. The jury
might have come to the conclusion, that the facts in evidence
and excluded, so operated upon the lessor, as to induce him
to waive the sealed lease, and claim only under a new parol
agreement. This brings us to the examination of the princi-
pal question in the cause as presented by the first instruction.
It was an old maxim of the common law, that an obligor
could only be released by an instrument of as high dignity
as that by which he was bound — being obligated by a seal,
he could be released only by an instrument under seal.
Technically, this may be the rule of modern times, but practi-
cally, it is not enforced. Of how frequent occurrence is it,
that in an action of debt upon a bond or other sealed instru-
ment, the defendant, under a plea of payment, proves by
parol, the actual receipt by the obligee, of the money due on
the bond, and which all courts hold to be a release and dis-
charge of the bond. So with a debt secured by mortgage, a
release of such debt need not be under seal. Ryan v. Dun-
lap et al., 17 111. 40. We are not sure, but that in every con-
ceivable case, where parties are bound to one another by
writing under seal, the obligors will be discharged, by parol
proof of facts, if sufficient in themselves to constitute a dis-
charge. And this, more especially, in cases where some one
or more of the parties are sureties only. Thus, where one
holds a bond against two others, one of whom is a surety only.
1863.] White v. Walker. 435
Opinion of the Court.
and he informs the surety that his principal has paid and dis-
charged the bond, or that he has made another and different
arrangement with him, on which the surety may have acted,
the surety will be discharged, on proof of such facts. In all
contracts for chattel interests evidenced by sealed instruments,
performance in pais will generally discharge all the parties
to it. So in a lease for rent at a stipulated sum, and guar-
anteed, as in this case, who will question that parol proof of
payment of the sum stipulated, will not discharge the guaran-
tor ? If proof of payment will discharge him, will not a new
parol agreement with the lessee discharge him, especially if
that agreement be fully executed ? That is the question made
here. The evidence excluded by the court tended to prove,
that in the lifetime of the lessee, on his representations of the
annoyances and discomforts occasioned by raising the grade
of the street in front of the demised premises, the lessor did
some act, or made some arrangement, which the defendant
claimed was a new agreement about the rent, and with which
the lessee had fully complied. Further, that on the death of
the lessee, his widow, but not his personal representative,
remaining in possession, a new agreement was made with her,
and which has also been fully executed. The object of the
proof was not to change the terms and conditions of the original
lease, but to show that its stipulations and covenants had
been waived by the lessor, and a new and different agreement
entered into, by which the written agreement was superseded
or discharged. The plaintiff insists, however, if a new agree-
ment was made, it was not upon any sufficient consideration,
and, therefore, had no binding force. The question is not,
what was the amount of consideration for the new agreement,
but, was there any consideration at all.
The proofs show, when the lessee complained to plaintiff,
of the injuries resulting to him from the flow of water upon
the premises, and other disturbances thereto, occasioned by
the improvements of the street, he informed the plaintiff that
he had taken legal advice that he was not obliged to stay on
the premises, whereupon the new agreement was made, and a
declaration made by plaintiff that defendant should not be
held on his guarantee, and this was communicated to him.
436 White v. Walker. [April T.
Opinion of the Court.
The premises were leased for a boarding house, and if they
became uninhabitable for such purpose, by reason of occur-
rences subsequent to the leasing, over which the lessee had
no control, and which in some degree were instigated by
the lessor, the tenant might have had the legal right to quit
the premises. The doctrine of the cases of Smith v. Mar-
raUe, 11 Mees. & Wels. (Exch. E.) 5, and Edwards v. Ether-
ington, 16 E. C. L. 271, would seem to go to this extent.
It might amount to an eviction. Halligan v. Wade, 21 111.
470. If this is conceded, a right to sue for damages occasioned
thereby, for loss of business or otherwise, would have arisen,
and this was waived by the new agreement. This is a suffi-
cient consideration. McKinley v. Watkins, 13 111. 140; 1
Parsons on Con. 356 to 369. Remaining in the house was a
detriment under the circumstances, and this would be a good
consideration for a new agreement.
Now, as regards the subsequent agreement with the widow.
On the death of the lessee, the lease being a chattel, passed
to his personal representatives, and no obligation rested upon
the widow to continue in possession, It was of interest to
the plaintiff that the premises should be occupied, and in the
condition in which they were, he might have supposed it
difficult to procure a tenant. In these consist a consideration.
A new lease was made to her, at a less rent, which was paid,
and accepted by the plaintiff, without any objection, from
month to month, as stipulated. Whether these facts constituted
a waiver or surrender of the original lease, and so intended
by the parties, should, at least, have been left to the jury.
In this view, the second instruction of defendant should have
been given. If they did, then the defendant was discharged
of his guaranty unquestionably. If, in ordinary cases, giving
time for a single day for a valuable consideration, will dis-
charge a surety, though he is not in the least degree damnified
thereby, a fortiori should he be discharged in this case, since,
by means of these new agreements, the defendant has waived
a security he might have had, by a chattel mortgage upon two
thousand dollars worth of furniture, which was offered him
by Mrs. Napier. Here is a new agreement executed in
1863.] White v. Walker. 437
Opinion of the Court.
full, and in this, the case is distinguishable from that of Chap-
man v. Me Grew, 20 111. 101. In that case McGrew was not
only a surety, but a contractor with Selby, and the contract was
unexecuted.
But if there was no consideration for the new agreement,
still if it has been executed, and by means thereof the defendant
has been led into a line of conduct which must be prejudicial
to his interests, by the admissions of the plaintiff, an equitable
estoppel arises, which will prevent a recovery by the plaintiff.
The testimony shows that defendant was present when the
last agreement was made to pay fifty dollars per month rent,
and that he was satisfied with it, and on that account declined
taking a chattel mortgage offered him by Mrs. Napier, on the
furniture, after the plaintiff had refused it. Defendant had a
right to rely on this agreement of plaintiff, made by his only
authorized agent, and by it was induced to decline a security
tendered him. The rule, we believe, is, thataproinise to for-
give a debt, or to forbear its collection, if either temporarily,
or for an indefinite period, unsupported by any consideration,
though ineffectual as a defense, viewed merely as an agree-
ment, yet if the surety has been induced by such an assurance,
to neglect any of the means which might have been used for
his indemnity, the promise may have that effect as an estop-
pel, which it wants as a contract, and amount to a defense
against any subsequent action brought by the creditor. Har-
ris v. Brooks, 21 Pick. 195 ; and see the notes and comments
on this case in 2 American Leading Cases, 175. The proof
offered brings this case fully within this rule.
It is urged by the appellant, that being sued as a guarantor
only, he was entitled to notice of the default of the lessee
before suit brought ; and the case of Cox v. Brown, 6 Jones
(Law) 1ST. C. 100, and Lewis v. Bradley, 2 Iredell, 303, are
relied on as authority. This seems to be the rule in that
State, and it is in the last named case said, that the rule of
law appears to be, that wherever the circumstance which is
alleged as the foundation of the defendant's liability, is ir.ore
properly within the knowledge and privity of the plaintiff,
4:38 White v. Walker. [April T.
Opinion of the Court.
than the defendant, then notice thereof should be averred in
the declaration and proved on the trial. Reference is made to
Homing's case, Cro. James, 432, 2 Saunders, 62 ; Rex v. Hol-
land, 5 T. K. 62 ; Spooner v. Baxter, 16 Pick. 409. Here
the fact of non-payment rested entirely with the plaintiff.
The defendant was liable secondarily, only, as appears by the
declaration, depending on the default of another ; it would
seem then but reasonable, that he should have notice of the
default, so that he might pay what was due, without being
harassed by a suit, or procure indemnity.
Another objection made by appellant is, that the court
allowed interest on the payments past due. In Walker v.
Iladduck, 14 111. 399, this court held, that a lessee was bound
to pay interest on installments of rent, from the time they
became due. In that case, nothing had been done by the
lessor, to prevent the regular payment of the installments, but
it is insisted, that in this case the postponement was by con-
sent of the lessor, and as interest is recoverable as damages
only, except when provided for in the bond, or agreement, no
damages could result to a consenting party, and such is the
general rule of law. Even admitting that these new agree-
ments were not valid and binding, they, at least, sanctioned
the breach of the covenant, as by them, the lessors consented
to accept less than the installments provided for in the lease.
The guarantor relied upon this arrangement, and the plaintiff',
therefore, ought not to be permitted now to demand interest,
certainly not without a demand for the money, and then
interest from the time of the demand.
The instructions for the plaintiff, in the view we have taken
of this case, should not have been given.
Two instructions asked by the defendant, should have been
given. They are as follows :
" It is for the jury to determine whether the plaintiff accept-
ed Mrs. Napier as his tenant, and if they believe, from the
evidence, that such was the fact, the plaintiff cannot recover
for any of the rent on the original lease after the commence-
ment of such new tenancy.
" If the jury believe, from the evidence, that W. J. Napier,
1863.] Speer v. Hadduck. <±3(J
Syllabus.
from November, 1857, to tiie time of his death, and hie
widow after his decease, to May, 1859, occupied the premises
in question at a different rate of rent, and under a differ-
ent agreement from that specified in the lease in question,
then the jury may infer a new leasing of said premises, and
the defendant is thereby discharged upon his guaranty, and he
is entitled to a verdict in his favor."
These instructions follow as a corollary to the propositions
we have advanced. It was a fit subject for the jury to deter-
mine, whether there was, or not, a surrender of the old lease,
and the creation of a new tenancy.
The court gave an instruction for the defendant in the fol-
lowing words : w If the jury believe, from the evidence, that
the time of payment of the rent, or any portion of the rent,
was extended by a valid agreement, founded upon a valuable
consideration, between Walker and Napier, such agreement
would discharge the defendant from all liability upon his
guarantee from the time of making such agreement."
This instruction was of no avail to the defendant, for the
reason that the court, by the first instruction for the plaintiff,
virtually excluded from the jury all evidence of any agree-
ment.
The judgment is reversed, and the cause remanded.
Judgment reversed.
Isaac Speer
v.
Benjamin F. Hadduck.
1. Conveyance by attorney — must be executed in the name of princi-
pal. A mortgage contained a power of sale authorizing the mortgagee, his
personal representatives or assigns, to sell the premises, and as the attorney
of the mortgagor, to execute deed to the purchaser : Held, that the assignee
of the mortgagee could only convey the title as the attorney of the mort-
gagor, and by using the name of his principal in the conveyance ; a deed
made by the assignee in his own name as grantor, was held not to pass the
title.
2. Assignee op mortgage — character of his title to the premises. A a
assignee of a mortgage cannot recover the premises in ejectment, where he
skime to be the owner in fee simple.
440 Speer v. Hadduce:. [April T.
Statement of the case.
Writ of Error to the Superior Court of Chicago.
This was an action of ejectment instituted in the court
below, by Hadduck, against Speer, to recover the possession
of a part of lot number one, in block number one hundred
and forty-one, in the School Section Addition to Chicago, the
plaintiff claiming to be the owner in fee simple of the premises,
and deriving title from Speer in the following manner :
In March, 1856, Speer and his wife executed a mortgage
upon the premises in controversy, to Calvin H. Goodman, to
secure the payment of a bond for the sum of $10,000 ; the
mortgage containing a power of sale, as follows :
" It shall be lawful for the said party of the second part,
his personal representatives or assigns, either in person, or by
attorney duly constituted, to enter upon all and singular the
premises hereby conveyed, and either in person, or by attor-
ney, to sell the same at public auction, after having first given
thirty (30) days' notice of the time and place of sale, (such
sale to be made in the city of Chicago,) by advertisement in
any one of the daily newspapers that may at that time be
published in said city of Chicago, (personal notice of such
sale to said party of the first part being hereby expressly
waived,) and as the attorney of the said party of the first part,
by these presents for such purpose duly constituted^ to make,
execute and deliver to the purchaser or purchasers at such
sale, a good and sufficient deed of conveyance for the same,"
etc.
The bond and mortgage were assigned by Goodman to
Seth Terry, and by Terry to Elisha S. Wadsworth, who, in
default of payment of the bond, advertised the premises for
sale in the manner prescribed in the mortgage, and in pursu-
ance of the notice given, proceeded to make the sale, on the
7th of June, 1859, at public auction. Hadduck, the plaintiff
below, became the purchaser, at the sum of $11,200. Wads-
worth executed a deed of conveyance for the premises to
Hadduck, in his own name, and not as the attorney of Speer
and wife, under the authority conferred by the mortgage, the
1863.] Speee v. Haddijck. 441
Briefs of Counsel.
deed reciting that the party of the first part " doth hereby
bargain, sell, convey, remise, release and quit claim to said
party of the second part, his heirs and assigns forever, all the
right, title and interest, either in law or equity which the said
party of the first part hath acquired by virtue of the said
assignment of the said mortgage deed above mentioned, of, in
and to the lands, tenements and premises hereinbefore de-
scribed," etc.
The jury returned a verdict for the plaintiff, finding him to
be the owner of the premises, in fee simple, and judgment was
entered accordingly. Thereupon the defendant, Speer, sued
out this writ of error.
Two questions are presented upon the record : first, whether
the deed from Wadsworth to Hadduck, being executed in the
individual name of the grantor, and not as attorney under the
mortgage, conveyed the title ; second, whether, if Hadduck
were regarded as assignee of the mortgage, he could recover in
ejectment, as holding the title in fee simple.
Messrs. Glover, Cook & Campbell, for the plaintiff in
error.
1. Wadsworth had no authority to make any deed at all.
He was neither the mortgagee nor the mortgagee's personal
representative, nor his legal assignee, and no other person had
authority under the mortgage either to sell, or make a deed.
2. The deed from Wadsworth to Hadduck was not within
the scope of the authority contained in the mortgage, and
therefore was of no force or effect as against the mortgagor,
and conveyed no title to Hadduck.
The mortgage directed the mortgagee, his personal repre-
sentatives or assigns, as the case might be, as the attorney in
fact of the mortgagor, to convey in his name, and not other-
wise.
Many analogous cases in regard to trustees and agents are
found in the books, and in them it is uniformly held, that the
conveyances made and acts done must be strictly within the
scope of the authority, or they are void. Stainbach v. Reed
56— 31st III.
442 Speer v. Haddttce [April T.
Briefs of Counsel.
11 Grat. 281 ; Osborne v. Homer, 11 Ind. 859 ; Pursley v.
Morrison et al., 7 Ind. 356 ; Bloom v. Rensselaer et al., 15
111. 502 ; Mathews v. Hamilton et al., 23 111. 470 ; Blinn v.
Evans, 24 111. 317 ; Fowler v. Shearer, 7 Mass. 14 ; Elwell v.
Shaw, 16 ib. 42 ; 5 Peters, 319 ; 4 Hill, 351 ; 7 Cowen, 453 ;
Story on Agency, sees. 147, 148, and cases cited in notes.
Messrs. Williams, Woodbridge & Grant, for the defendant
in error.
The objection that the deed of Wadsworth to appellee was
in his own name, instead of that of the grantors in the mort-
gage, cannot be sustained, because Wadsworth, as assignee,
stood in the place of the mortgagee, who not only has a power
coupled with an interest, but after condition broken is the
owner of the fee, and therefore at liberty to sell in his own
name. Gideon v. Hoe ex dem. Tout, 7 Blackf . 210 ; Yansant
v. Allman, 23 111. 33 ; Carroll v. Ballanee, 26 111. 17 ; Long-
with v. Butler, 3 Gilm. 32 ; Bloom v. Rensselaer, 15 111. 506 ;
Story on Agency, sees. 150, 164; Wilson v. Troup, 7 Johns.
K. 25; Cur den v. Morgan, 18 Vesey, 394; Hunt v. Rous-
manierei Adm\, 2 Mason, 244; Same case, 3 Mason, 294;
Bergen v. Bennett, 1 Caines' Cas. E. 1.
But in case the execution of the power of sale is held
irregular or faulty by this court, as we think it will not, the
appellee is still entitled to recover in this action as assignee of
the mortgage, and the deed from Wadsworth to him, will oper-
ate as an assignment of the mortgage.
" The conveyance b}T a mortgagee under the power of sale
in his mortgage, even if the proceeding to foreclose be irregu-
lar, yet carries all his interest to the purchaser, as well in the
debt as in the land mortgaged; such a deed operates as %
good assignment of the mortgage, and the purchaser may
claim as assignee of the mortgage." Jackson v. Bowen, 7
Cowen E.. 13; Grosnover v. Hay, 1 Clarke's Oh. R. 109;
Birch v. Wright, 1 Term. 383 ; 10 Johns. 480 ; 4 ib. 216 ;
Werner v. Belcher, 3 East, 349 ; Carroll v. Ballanee, 26 111. 9
1863.J Speer v. Hadduck. 443
Opinion of the Court.
Mr. Chief Justice Caton delivered the opinion of the
Court :
Speer and wife executed a mortgage to Goodman, who
assigned the same to Terry, who assigned to Wadsworth.
The mortgage contained a power of sale as follows: " It shall
be lawful for the said party of the second part, his personal
representatives or assigns, either in person, or by attorney
duly constituted, to enter upon all and singular the premises
hereby conveyed", and either in person, or by attorney, to
Bell the same at public auction, after having first given thirty
(30) days' notice of the time and place of sale, (such sale
to be made in the city of Chicago,) by advertisement in any
one of the daily newspapers that may at that time be published
in said city of Chicago, (personal notice of such sale to said
party of the first part being hereby expressly waived,) and as
the attorney of the said party of the first part, by these
presents for such purpose duly constituted, to make, execute
and deliver to the purchaser or purchasers at such sale, a
good and sufficient deed of conveyance for the same," etc.
Wadsworth advertised, sold and conveyed the premises in
his own name, and not in the name and as the attorney oi
the mortgagors. And the only question is, whether this con-
veyed a good title in fee simple to the purchaser, Hadduck.
Manifestly it did not. He could only make the sale and con-
veyance under and in pursuance of the power contained in
the mortgage ; and that power he was bound strictly to
follow. That power did not authorize him to sell and convey
the premises in his own name, but it expressly required him
to do that as the attorney of the mortgagors, and this he could
only do by using the name of his principal. If it be said
that this conveyance at least operated as an assignment of the
mortgage, and that Hadduck, as such assignee, had a right to
recover on the mortgage for condition broken, then the verdict
and judgment were wrong, for they find and adjudge that
Hadduck has the fee simple of the premises.
The judgment is reversed, and the cause remanded.
Judgment reversed.
M4 Mullen v. The People. [April T.
Briefs of Counsel.
Patrick Mullen
v.
The People of the State of Illinois.
1. Manslaughter — penally on conviction. Under the 29th section of
the criminal code, a party convicted of the crime of manslaughter might
be punished by imprisonment in the penitentiary for a term less than one
year.
2. But the act of 1859 on that subject, repealed the 29th section of the
criminal code in that regard, and under its provisions the jury cannot fix
the time of imprisonment for such offense at less than one year.
3. Repeal op statutes — repugnancy. A statute may be repealed
without an express clause for that purpose ; where two statutes are repug-
nant to each other in their provisions, the latest expression of the will of
the legislature must prevail.
Writ of Error to the Circuit Court of the county of
Cook ; the Hon. George Manierre, Judge, presiding.
Patrick Mullen was indicted in the court below, for man-
slaughter. Upon the trial, the court instructed the jury, on
behalf of the prosecution, " that if they should find the de-
fendant guilty as charged in the indictment, they should fix
his term, of imprisonment in the penitentiary not less than
one year, and might fix it for his natural life."
The jury returned a verdict of guilty, and fixed the term
of imprisonment of the defendant in the penitentiary, at one
year. A judgment was entered accordingly. The defendant
sued out this writ of error, and now questions the correctness
of the instruction given to the jury.
Mr. Edward G. Asay, for the plaintiff in error, insisted
that the instruction is erroneous, because, under the 29th sec-
tion of the criminal code (Rev. Stat. 1S45, 156,) a person
convicted of the crime of manslaughter might be punished
by imprisonment in the penitentiary for a term less than one
year ; and that the act of 1845 was not affected in that regard
by the act of 1859. (Sess. Laws, 125.)
1863.] Mullen v. The People. 445
Opinion of the Court.
Mr. D. P. Jones, State's Attorney, for the People.
Mr. Justice Walker delivered the opinion of the Court :
It is insisted that the court erred in its instruction to the
jury. On behalf of the prosecution, the court gave an
instruction, that if the jury found the defendant guilty, they
should fix the term of his imprisonment, in the penitentiary,
at a period of not less than one year, and might extend it to
the period of his life. It is insisted that the instruction is
erroneous, because the act of 1845, R. S. 156, authorizes the
confinement of persons convicted of manslaughter, for a term
less than one year. It is urged that the act of 1859 (Sess.
Laws, 125,) does not repeal this provision of the former act.
The latter act provides, that upon conviction, the jury shall,
in their verdict, fix the time which the party shall be confined
in the penitentiary, which shall be for his natural life, or any
number of years.
This act contains no express repealing clause. But the
latter act is comprehensive, and embraces all that is embraced
by the 29th section of the criminal code. The provisions of
the act of 1859 are repugnant to the provisions of the
former act, inasmuch as it requires the term to be for life,
or a number of years, whilst the former act authorized it to
be fixed for any period not exceeding eight years. Under
the original act, a jury had the right to fix the time at less
than one year, but under the act of 1859, it at least must be
for one year. In so far as the acts are repugnant, the last
expression of the will of the General Assembly must prevail*
Instead of this instruction being prejudicial to plaintiff in
error, it was certainly as favorable as he could ask, and it
may be more than he had a right to demand under the
statute.
The judgment of the court below is affirmed.
Judgment affirmed.
440 Welch v. Louis et al. [April T.
Syllabus.
Thomas Welch
v.
John Louis et al.
1. Striking a cause prom the docket — its efect — mode of bringing
cause again before the court The striking of a cause from the docket does
not place it so out of court and beyond its jurisdiction, but that it can be
again brought before the court in some mode. Tibbs et al. v. Allen, 29 111.
535, in which the mode of bringing the case again before the court is sug-
gested.
2. Where all the parties to a suit in chancery have died since the cause
was stricken from the docket, the course indicated by the practice in chan-
cery by which to bring the case again before the court, is by bill, in the
nature of a bill of revivor, by the heirs at law of one party against the
heirs at law of the other party.
3. And the bill in such case, should progress to a hearing and decree, as
in other cases.
4. Unless this course is pursued, or something equivalent to it, the court
can have no jurisdiction of the case.
5. In this case, after a decree enforcing the specific performance of a
contract in regard to a division of a tract of land between two claimants,
and a commissioner appointed to execute deeds to the parties respectively,
the cause was stricken from the docket. Six years afterwards both parties
died. Four years after their death, the commissioner not having yet acted,
and the cause being still off the docket, the court entered a decretal order
that the commissioner convey to the heirs of the original parties respect-
ively, which he did. Held, that these last proceedings in the court, after
the cause was stricken from the docket, were coram non judice, and were
not only irregular, but void ; and so, also, the deeds executed in pursuance
of such proceedings, were void.
6. Decree — void for uncertainty. In a suit to enforce the specific per-
formance of a contract in regard to the division of a tract of land between
two joint owners, the decree gave a certain specified portion first to one
party, and then also decreed the same portion to the other party, and making
no disposition of the residue of the tract. Held, the decree was void for
uncertainty.
7. Master in chancery — must act conformably to decree. Where a
commissioner appointed by a decree in chancery to convey land, departs
materially from the directions in the decree, in his execution of the power,
his acts, not being conformable to the decree, will be void.
8. Powers — naked powers must be strictly pursued. A naked power
must be strictly pursued, and a conveyance of land not authorized by the
power, is a void conveyance.
1863.] Welch v. Louis et al. 4:4=1
Statement of the case.
9. Trespass upon land — former occupancy, no defense. One who has
been an occupant of government land, but who has abandoned the prem-
ises, the title to the land having in the meantime become vested in a pur-
chaser from the government, cannot set up his former occupancy as a de-
fense against trespasses committed by him upon the premises after his
abandonment.
10. Evidence — declarations of party ', when admissible. In trespass
quare clausum fregit by the owner of the land, the defendant set up his
occupancy of that portion of the premises upon which the alleged tres-
pass was committed ; the plaintiff endeavored to show an abandonment of
such occupancy, by the defendant having moved off the fencing, etc., and
it was held competent to prove the declarations of the defendant in that
regard at the time he was removing the fence, as a part of the res gestaz.
11. Trespass upon uninclosed land — what is sufficient title to sus-
tain the action. Action for trespass upon the uninclosed portion of a tract
of land. The plaintiff showed a paper title to the whole, and actual pos-
session and cultivation of part, claiming the whole tract. Held, to be suffi-
cient evidence of title to the uninclosed part, to sustain the action.
12. Possession op uninclosed land — of acts in reference thereto.
The plaintiff having such title, the occasional use of an undescribed part
of the tract by the defendant, who occupied an adjacent farm, to place
wood upon, and resorting to the bank of the river upon which it lay, for
washing, picking up sticks of wood upon it, crossing over it to reach the
river, are no possessory acts out of which a title could spring, sufficient to
defeat that of the plaintiff.
Writ of Error to the Circuit Court of Tazewell county ;
the Hon. James Harriott, Judge, presiding.
This was an action of trespass quare clausum fregit insti
tuted in the court below by Thomas Welch against John
Louis, Margaretta Louis and Mary L. Hammond. The defend-
ants pleaded not guilty, and li~berum tenementum.
The principal facts in the case will be found in the opinion
of the court.
But a question arises as to the validity of certain proceed-
ings in a suit in chancery, under which defendants claimed
title to the locus in quo, which were had after the cause had
been stricken from the docket, and after the original parties
to the suit had died. Those proceedings will be understood
from the following statement : It appears the suit in chancery
was instituted in 1839, by John Florent Louis, the ancestor
448 Welch v. Louis et aL [April T.
Statement of the case.
of tlie defendants, against Francis Clement, from whom the
plaintiff derives title, to enforce the specific performance of a
written agreement which provided for a division between the
contracting parties of a parcel of ground including the locus
in quo. The suit progressed to a final decree, which was
entered in 1841, directing a division of the land, and that
each party should convey to the other the portion to which
he was entitled under the decree. The parties refusing to
execute that decree, at a subsequent term, the court directed
the conveyances to be made by a commissioner appointed for
that purpose. Afterwards, at the September term, 1842, the
cause was stricken from the docket. No further proceedings
were had in relation to that suit until April, 1852, when a
decretal order was made in the cause, reciting that the com-
missioner had failed to execute the former decree, and that
the original parties to the suit had died in 1848, leaving
certain persons, who were named, as their heirs at law,
respectively, and directed the same commissioner to execute
conveyances to those heirs, respectively, according to the rights
of their ancestors, as found in the decree rendered in 1841.
At the same term the commissioner reported to the court that
he had executed the conveyances to the heirs mentioned, as
directed, and that report was entered of record. But it does
not appear that the report was approved by the court.
The defendants claimed title under the deed executed to
them by the commissioner under the authority mentioned.
All the other features of the case are set forth in the opinion
of the court.
The trial in the court below resulted in a verdict and judg-
ment for the defendants, and thereupon, Welch, the plaintiff,
sued out this writ of error.
Messrs. Cooper & Moss, for the plaintiff in error.
Mr. B. S. Pbbttyman, for the defendants in error.
1863.] Welch v. Louis et al. 449
Opinion of the Court.
Mr. Justice Bbeese delivered the opinion of the Court :
This was an action of trespass to land, brought by the
plaintiff against the defendants, in the Tazewell Circuit Court.
To the action the defendants pleaded not guilty and a special
plea, that the close, etc., was their soil and freehold. The
jury found the issues for the defendants, and a judgment was
rendered against the plaintiff for the costs. A motion for a
new trial was made and overruled, a bill of exceptions signed,
and the case brought here by a writ of error, and various
errors assigned, which will be disposed of as we proceed.
The facts of the case appear to be substantially these. One
Moushon, in 1832, entered upon the land including the locus
in quo, while it belonged to the United States, and made some
improvements in the north-west fractional quarter, and on the
north-east fraction also. He built a stable and made a small
field on the south part of the north-west, and a house on the
south part of the north-east fractional quarter, on the east side
of the road dividing the two fractions, and near the south line
of the quarter. Moushon sold these improvements to Francis
Clement, in 1834, who, thereupon, went into possession.
Whilst Moushon occupied, the father of the defendants, John
Florent Louis, lived with him, and made an improvement on
the hill fraction, in the south half of the north-east quarter,
and in the north-west corner, and east of the road ; he built
his house near the north line of the south half, and inclosed a
small field of about two acres, on the west side of the road
near his house. This field he cultivated one year. It was
low ground, and the next year the water washed off most of
the fence ; Louis then removed the remainder, and used the
rails in making a fence around a field on the east side of the
road. It appears this road ran north and south on the line
dividing the north-west from the north-east fractional quarter
until near the north-west corner of the south half of this
quarter, when it inclined to the east, and left about two acres
of this tract west of the road.
The land was public land, and on the 26th of July, 1836,
57— 31st III.
450 Welch v. Louis et at. [April T.
Opinion of the Court.
Clement and John Florent Louis entered into a written agree-
ment, reciting that they had obtained from the Land Office
a certificate of purchase for the north-east fractional quarter ;
and for the purpose of making a division of it between them,
Clement agreed to convey to Louis the north half of the
quarter, and Louis agreed to convey to Clement the south half,
u the intention being that each party shall retain his improve-
ments," and to effect that object, it was agreed that the land
should be surveyed, and if it was found by the survey that
Louis' improvement was on the south half of the quarter,
then it should be conveyed to him by Clement ; and in return
therefor, Louis should convey to Clement an equal number of
acres out of the north half; and if any part of the improved
land of Clement should be found to be in the north half of
the quarter, then Louis was to convey it to him, taking himself
an equal quantity from the south half. They also agreed to
convey to each the improvement which each might have on
the small fraction of fourteen acres attached to the land
described in the agreement.
As was frequently the case about the time of this agree-
ment, parties who had proved up their pre-emption, so dis-
posed of their claims as to enable another party to make
payment and procure the certificate of purchase from the
United States, and which, we infer, was the course pursued
in this case, for one John W. Casey entered and purchased
the whole of the north fractional half of section twelve
containing one hundred and sixty-five and eighty one hun-
dredths acres, and, it is admitted by the parties to this suit,
became the undisputed owner thereof. Casey, on the 20th of
May, 1837, by deed of that date, duly recorded on the 2nd of
August, 1837, sold and conveyed the same to Clement.
Clement continued to occupy the south part of the north-
east fractional quarter, and of the field on the north-west
fractional quarter, cultivating it, taking wood from that part
of it not inclosed, and exercising such acts of ownership over
it as is usual and customary by owners or claimants of unoc-
cupied land, though his right was denied by Louis. After
his death, in July, 1848, his children and heirs at law, con
1863.] Welch v. Louis et at. 451
Opinion of the Court.
tinued such occupancy, until the fifth of February, 1858,
when they sold and conveyed, by deed of that date, to the
plaintiff, the south half of the north-east quarter, containing
seventy-five and fifty one hundredths acres, and the north-
west fractional quarter, containing fourteen acres more or less,
under which deed the plaintiff went into possession, and was
in possession at the time of suit brought. John Florent Louis
died in March, 1848, leaving these defendants, his heirs at law,
who occupy as their ancestor did.
It appears that Louis, the ancestor of these defendants, had,
in his lifetime and the defendants since his death, disputed
the right of Clement to this fraction, and while it is not
proved that they themselves ever exercised any unequivocal
acts of ownership over it, they have prevented the plaintiff
from extending his fields over the north part of the fraction,
and from inclosing it for any purpose. It is in proof, no
portion of the fraction north of plaintiff's field has ever been
inclosed.
With a view to an exclusive appropriation of the north part
of this small fraction, the plaintiff, before the commencement
of this suit, commenced to build a paling fence on the east
line of it with poles cut from this land, when the defendants
interposed and tore it down. The design was, to inclose all
the vacant portion of the fraction, which was prevented by
the violent acts of the defendants. One year before, including
the time laid in the declaration, it appears, that one of the
defendants tore down the fence on the north side of the field
in two different places ; at one place near the river, where the
plaintiff was repairing the damages occasioned by high water,
in doing which, he placed his fence somewhat farther north
than it had been, which Margaretta, one of the defendants,
tore down. The other place was at the north-east corner of
this field by the road, when the same defendant tore down
several pannels of fence, — of the old fence which had been
made by Moushon and had stood there at the time of the pur-
chase by Clement and ever since. This field, inclosed in
part by this fence, it appears, has been in the actual and
undisturbed possession of the plaintiff and those under whom
452 Welch v. Louis et al. [April T.
Opinion of the Court.
he claims, for about twenty-six years, and at the point where
the trespass was committed, the fence stood where it was
placed before the sale to Clement in eighteen hundred and
thirty-four.
These are the main facts of the plaintiffs case.
The defendants, to maintain the issues on their part, intro-
duced as evidence, against the objection of the plaintiff, certain
proceedings in chancery, originating in 1839, wherein John
Florent Louis was complainant, and Francis Clement was
defendant, and which, at the September term, 1839, resulted
in an interlocutory decree.
The bill on which the decree was based, and which was the
foundation of subsequent proceedings, sets out this agreement
of July 26, 1836, and charges that it was agreed between the
complainant and defendant, that there was a fraction of four-
teen acres lying in front of complainant's land, that defendant
agreed with complainant, in case whatever improvements
he, complainant, had on that fraction, the defendant would
convey to him, and alleges that as to this fractional tract of
fourteen acres, the defendant, Clement, " is the sole owner
thereof."
The object and scope of the bill was to obtain a specific
performance of the agreement of July 26, 1836, as to the
respective rights and claims of the parties to the north-east
fractional quarter, and that this tract should be so divided
between them, as that each party should have an equal quan-
tity of land to include their respective improvements ; the
south half to be set off to the defendants, leaving thereout
such portion of it as the complainant might have under im-
provement, and the north half to be set off to complainant,
the defendants to be compensated out of it, for as much of the
south half as complainant's improvements should cover.
There is an allegation in the bill, that the defendants
designed to defraud complainant out of his improvements.
The prayer of the bill is not quite intelligible, but we under-
stand it to be, that Clement should be decreed to convey to
complainant, so much of the south half of the north-east
quarter as embraced complainant's improvements, in consider-
1863.] Welch v. Louis et do. 453
Opinion of the Court.
ation that complainant would first convey to the defendants an
equal quantity out of the north half, and also prays that his
improvement on the fraction of fourteen acres might be set off
to complainant.
The bill was taken as confessed. We deem it unnecessary to
notice the decree which followed, for the reason, it was, at
the next April term, 1840, on motion of the defendant, vacated.
At the April term, 1841, another order and decree was
entered, granting the prayer of the bill as to the north-east,
fractional quarter, and the respective improvements of the
parties thereon, and it was further ordered, that the surveyors
survey and ascertain how much land complainant had under
improvement in 1836, and survey the second described four-
teen acres, measure the land, and describe the same by metes
and bounds. And the court appointed Lewis Prettyman
surveyor, who was required to report his proceedings in the
premises to the next term of the court.
At the next term, it being the September term, 1841, the
complainant presented the report and survey of Mr. Pretty-
man, whereupon the record recites, "it appearing to the
court by the report of the surveyor, that the improvements
Louis had on the south half of the north-east quarter, consists
of a piece of land containing six and ten one hundredths
acres, described by metes and bounds, that the surveyor has
measured and set off in lieu of this land, the following land :
commencing at the north-west corner of the above improve-
ment of six and ten one hundredths acres ; thence north, one
and seventy-eight one hundredths chains, to a stone ; thence
east, thirty-four chains, to a stone ; thence south, one and
seventy-eight one hundredths chains, to a post ; thence west,
thirty -four chains, to the place of beginning ; containing six
and live one hundredths acres." It also appearing by said
surveyor's report, that the metes and bounds of the small
fraction of land described in the interlocutory decree men-
tioned, are as follows : (here the metes and bounds are speci
lied,) u containing twenty-one acres." It further appearing
to the court that the complainant had, in 1836, an improve-
454 Welch v. Louis et al. [April T.
Opinion of the Court.
ment on the north part of the above fraction, as follows :
(describing it by metes and bounds,) " containing two and
fifty-two one hundredths acres." "
The court being fully advised in the premises, orders and
decrees, that the plaintiff convey to the defendants by deed,
the following described land, to wit : the north half of the
north-east fractional quarter of Section number 12, Town 25
north, Range 5 west ; also, that the complainant shall convey
to the defendant a private cart away across the north end of
the land described as complainant's improvement, upon the
complainant executing the deed as aforesaid ; and the court
doth decree, that the defendant convey to the complainant
the following land, to wit : commencing at a post at the north-
west coiner black walnut 12 inches, bearing south eighty-one
degrees, west twenty-eight links ; thence south, nine and six
one hundredths chains, to a stone ; thence east, six and
seventy-five one hundredths chains, to a stone; thence north,
nine and six one hundredths chains, to a stone; thence west,
six and seventy-five one hundredths chains, to the place of
beginning ; containing six acres and ten hundredths of an
acre — also, the north half of the north-east fractional quarter
of section number twelve, the said deed to be executed and
delivered by the next term of this court, to which term the
cause is continued.
At the April term, 1842, the next term in course, a further
hearing was had, " and the report of Pretty man, a commis-
sioner and surveyor, appointed by this court to survey and
divide the fractional quarter of Section twelve, Township
twenty-five north, Range iive west of the third principal
meridian, in Tazewell county, fairly and impartially between
the parties aforesaid, having reference to a certain contract
entered into between said parties, having been heard and
approved : It is therefore considered by the court, (said parties
to said contract having refused to convey to each other their
separate portion, according to said contract contemplated,)
that Peter Menard, Jr., be appointed a commissioner to ex-
cute and deliver to each of the said parties aforesaid, a good
and sufficient deed in the partition of said land, having refer-
1863.] Welch v. Louis et al. 455
Opinion of the Court.
ence to said partition, division or survey of said land, made
by said Prettyman, and to this court submitted, and now on
files of this court, and that he make report of the same at the
next term of this court."
At the September term following, on motion, it was ordered
that the cause be stricken from the docket.
This is the state of the record up to the September term,
1842 ; and the question here arises, what was the condition of
the cause when it was stricken from the docket — was it any
longer in court, for the action of the court upon it ? This
question we discussed at some length in the case of Tibbs et
al. v. Allen, 29 111. 535, and the conclusion there reached was,
that the cause was not so out of court and beyond its juris-
diction, by striking it from the docket, but that it could be
again brought before the court in some mode, and the mode
suggested in that case, was, by motion and notice, or by
petition, or supplemental bill, setting out the facts as they
existed up to the time of the motion, or petition or bill.
By the death of these parties in 1848, the suit abated,
making, in this respect, the case to differ from Tibbs' case. It
is an anomaly in judicial proceedings, to carry on a suit in
the name of the deceased parties to it. A bill, in the nature
of a bill of revivor, by the heirs at law of one party against
the heirs at law of the other party, is the course indicated by
the practice in chancery in such cases. 3 Daniel's Ch. Pr.
1718.
The propriety of this is obvious, for although a deceased
proprietor of lands may leave children, it does not follow
they become entitled to his estate. He may have aliened it
to other parties — he may have devised it in certain and
unequal proportions to his children, or wholly, to strangers;
hence the necessity of a bill to revive the proceedings wherein
the complainants should show their estate in the land, and
the defendants' claim, and by what right, so that they may
have an opportunity to disclaim, or otherwise defend, according
to the nature of their case.
By the death of these parties, new rights arose, of the
nature of which, the court should be judicially informed by
4:56 Welch v. Louis et al. [April T.
Opinion of the Court.
bill, and the bill should progress to a hearing and decree as
in other cases. Without this, or something equivalent to it, the
court had no jurisdiction of the case, and the proceedings
commencing in 1852, near ten years after the cause was
stricken from the docket, and four years after the death of
both parties, were not only irregular, but void. There was
neither a cause in court, nor living parties to the cause, in
which the Circuit Court undertook to act. The whole subject
was coram non judice, and the report of the commissioner,
and the deeds executed by him to the heirs at law of the
deceased parties, should not have been received by the conrt.
The action of the conrt, in these respects, was void and of no
effect, and they should not have been allowed to go in
evidence.
But waiving this, and considering the proceedings in 1852,
and the report and deeds regular, it will be seen on examina-
tion, the deeds do not conform to the decree, and are, for that
reason, void and of no effect.
The decree, which was passed on the coming in of the
surveyor's report, gives to the defendant the north half of the
north-east fractional quarter, and also, in the last portion of
it, decrees it to the complainant, and does not decree the south
half to the defendant. It is therefore void for uncertainty.
The deed gives the north half to complainant's heirs, and the
south half to defendant's heirs. By the decree, the strip
taken out of the north half and awarded to the defendant is
described as bounded by lines, the initial point of which is at
the north-west corner of complainant's improvements, on
the south half, whereas by the deed, following the courses
and distances given in it, not one of the lines would touch the
north-west corner, but would only reach the north-east corner
of the improvement. The decree does not find that the
complainant, Louis, was entitled to any part or portion of the
north-west fractional quarter of twelve, but only directs the
surveyor to measure it, and ascertain what improvements the
complainant had on it in 1836. This the surveyor did, and
reported the area as twenty-one acres, and that complainant
had on it in 1836 an improvement of two and fifty-two one
1863.] Welch v. Louis et al. 457
Opinion of the Court.
hundredths acres. The deed conveys to him not only this
two and fifty-two one hundredths acres, but five and fifty-two
one hundredths acres in addition.
It is unnecessary to cite authorities on the point, that a
naked power must be strictly pursued, and that a convey-
ance of land not authorized by the power, is a void convey-
ance. The commissioner did not, by his deeds, carry out the
decree, but materially departed therefrom, and his acts not
being conformable to the decree, are void, These deeds were
not approved by the court, so that no aid can be derived from
that quarter. They stand upon their naked merits, and not
being authorized by the decree, they must be considered as
invalid, and inoperative to convey title.
A commissioner, like any other agent or attorney, must act
according to the power conferred, and convey the land he is
authorized to convey, and none other. The doctrine on this
point is too well settled to require argument or authority.
Without adverting to, or discussing the objections made by
the plaintiff to the introduction of these deeds, it is sufficient
to say, the commissioner had no power by the decree to exe-
cute them, and they conveyed no title to the premises on
which the trespass wTas committed.
The defendant also called one William Hammond as a
witness, who stated that the defendants had occupied the
land in dispute since 1848, that John Louis had a wood yard
on a part of it, north of the field on the river, and he and the
family have washed at the river. On his cross-examination
he said, Louis and Clement had lawsuits about this land, and
no part of the portion in dispute was under cultivation.
This was the defendants' case, whereupon the plaintiff,
against the objection of the defendants, introduced in evi-
dence certain other proceedings in chancery, commenced in
1850, by the heirs at law of John Florent Louis, these defend-
ants, and the heirs at law of Clement and Peter Menard the'
commissioner, to correct certain errors in the original decree,
and to revive and continue the original abated suit, praying
to carry into effect the original decree, which we deem
unnecessary to notice more particularly, inasmuch as the
58— 31st III.
468 Welch v. Louis et al. [April T.
Opinion of the Court.
bill, after being amended, and continued from term to term
until 1853, was dismissed at the costs of the complainant.
Whether this dismissal did, or did not, dispose of the original
decree, is a question not essential to this case to be decided, as
we are of opinion the plaintiff's case was fully made out by
the proof he had adduced.
The plaintiff proved the trespasses to have been committed
on land to which, by Casey's deed, and by the admissions of
the defendants' ancestor, he had the title. Having the title;
he had a perfect right to enclose the land, and a forcible dis-
turbance of him in the exercise of that right, was a trespass.
Some stress was laid upon a prior occupancy of a part of thig
north-west portion by John Florent Louis, and on an improve-
ment made by him thereon, and which Clement agreed to
convey to him. Saying nothing about this agreement, as
being void for want of a consideration, it is quite evident he
had no improvement on it in 1836, or at any other time. The
proof is, he enclosed, while living with Moushon, about two
acres of land west of the road, and it is proved, that a small
portion of the south half of the north-east quarter is west of
the road by reason of the road trending to the east just as it
reaches the south-west corner of that tract, so that must have
been the improvement, and no other. But if it was on the
north-west fraction, he voluntarily abandoned it, by removing
the rails, and it was competent for the plaintiff, in order to
show an abandonment, to prove the declarations of Louis,
when he wTas in the act of removing the fence. It was a part
of the res gestae — of the thing done — giving it character,
showing the animus under which it was done. Rigqs v. Cook,
4 Gilm. 336. The court erred in not permitting the plaintiff
to have these declarations go to the jury. Proctor v. Town
of Lewiston, 25 111. 153. It may be, he said he had no
claim or title to the land, and he would therefore remove his
fence. The weight of evidence is, however, that this improve-
ment was not on the north-west fraction but upon the north-
east.
The plat used in evidence in this cause, shows a strip of
land west of the road, part of the north-east quarter, which
1863.] Welch v. Louis el at. 459
Opinion of the Court.
we infer was the tract which Louis improved and from which
he removed the fence. All the witnesses concur in saying,
that the part of the fraction north of plaintiffs field never
was at any time enclosed.
The trespasses were committed on land to which the plain-
tiff shows a paper title and actual possession and cultivation of
part, claiming the whole tract. This is sufficient evidence of
title to the unenclosed part, to sustain the action. Davis v.
Early et al., 13 111. 192, and cases there cited.
The commissioner's deed to defendants being void, they are
left without a leg to stand upon. No possession of any portion
of this tract, by defendants or their ancestor, has been shown.
The occasional use of an undescribed part of it, to place
wood upon, and resorting to the bank for washing, picking up
sticks of wood upon it, crossing over it to reach the river, are
no possessory acts out of which a title can spring, sufficient
to destroy the title shown by the plaintiff.
It is also in proof, that the plaintiffs, or those under whom
they claim, have paid taxes on this fraction, for a series of
years. It is described as containing but fourteen and one-
fourth acres, but upon survey, it is found to contain twenty-
one acres. The defendants show no payment of taxes on any
part of the fraction.
We deem it unnecessary to comment upon the instructions
given and refused, as the views wTe have expressed dispose of
them substantially, so that on another trial, the Circuit Court
will give such instructions, should it be moved to do so, in
harmony with this opinion.
The judgment of the Circuit Court is reversed, and the
cause remanded for a* new trial, and for further proceedings
not inconsistent with this opinion.
Judgment reversed.
4:60 Fender et al. v. Stiles. [April T.
Statement of the case.
Hiram Fender et al.
v.
Ellas B. Stiles.
1. Pleading — averments in declaration on bond of indemnity. A and
B placed money which they had bet upon a horse race, in the hands of C,
as stake-holder. A dispute arose as to which was entitled to the money,
A or B. But the stake-holder gave the whole of the money to B, upon his
giving him a bond of indemnity against any suit or demand of A in that
regard. A afterwards recovered from the stake-holder the money which he
had deposited with him. It was held, that in an action upon his bond of
indemnity, C must aver either that the obligor had notice of the action by
A against him, or that A really had a good cause of action on which he
recovered, or might have recovered the money.
2. But in this case, it appearing from the bond, which constituted a part
of the declaration, that A ought to have recovered the portion of the money
which he deposited with the stake-holder, it was enough that the latter
averred in his declaration on the bond, that such recovery was had.
3. Judgment against those, of several defendants, who are served. Where
two only, of three defendants in an action of debt, are served with process,
it is proper to take judgment against the two upon whom service was had.
Appeal from the Circuit Court of Lee county.
This was an action of debt instituted in the court below by
Elias B. Stiles, against Hiram Fender, Harvey Wilson and
John Deeds, upon a bond executed to the plaintiff by the
defendants, in the penalty of one thousand dollars, containing
the following condition :
" The condition of the above obligation is such, that whereas
the said Hiram Fender, and one Edward Atkins, have, on the
day of the date hereof, placed in the hands of said Stiles the
sum of $436 each, the whole amount of which was to be
delivered by the said Stiles to the said Fender, in case his
sorrel horse should outrun the brown mare of said Atkins, in
a certain race run between them (the said horse and mare)
this day, or to be delivered to said Atkins in case his mare
should outrun in such race ; and whereas, there is a dispute
between said Fender and said Atkins as to which of them is
1863.] Fender et al. v. Stiles. 461
Statement of the case.
entitled to said money j and whereas, said Stiles hath delivered
the whole amount thereof to said Fender : Now, therefore, if
the said Fender shall at all times indemnify and save and
keep the said Stiles free and clear and harmless against all
suits, actions, damages, judgments, costs and expenses which
may be brought or recovered, or in any manner incurred by
reason of any manner of claim or demand which said Atkins
may have or pretend to have against said Stiles, by reason of
said Stiles refusing to pay said money, or any portion thereof,
to said Atkins, then this obligation to be void; otherwise of
full force and virtue."
The following is the breach as alleged :
"And although at the November term of the said Lee
county Circuit Court, for the year eighteen hundred and sixty-
one, Edward Atkins, by reason of a certain claim or demand,
which the said Atkins then and theretofore had against the
said plaintiff, by reason of the said plaintiff 's refusing to pay
to said Atkins a portion of the money referred to in the con-
dition of said writing obligatory, to wit, the sum of money so
placed in the hands of said plaintiff by said Atkins, recovered
against the said plaintiff in a certain suit theretofore brought
and then pending in said court, wherein the said Atkins was
plaintiff, and the said Stiles was defendant, a judgment in the
sum of four hundred and twenty-nine dollars, his (said At-
kins's) damages in this behalf sustained, together with his costs
and charges by him (said Atkins) in and about said suit
expended, whereof the said plaintiff, Stiles, was convicted, as
appears of record.
" Yet the said Hiram Fender, although often requested so
to do, hath not, from the time of the making of said writing
obligatory, indemnified, and saved, and kept the said plaintiff
free, clear and harmless, against said suit, judgment, damages,
costs, and the expenses by the said plaintiff incurred in and
about said suit, according to the condition of the said writing
obligatory, but has hitherto wholly neglected and refused, and
still neglects and refuses so to do. And by means thereof,
the said plaintiff, Stiles, after the making of the said writing
obligatory, to wit, on the twenty-fourth day of June, A D.
462 Fender el al. v. Stiles. [April T>
Statement of the case.
1860, and on divers other days and times afterwards, was
forced and obliged to, and did, necessarily lay out and expend
divers sums of money, in the whole amounting to a large
sum of money, to wit, the sum of one thousand dollars, in
and about the defense of said suit, so brought and incurred
about the payment and canceling the said judgment and costs,
recovered as aforesaid to be satisfied in full, to wit, at said
county of Lee, by means of which said premises the said
plaintiff has sustained damages to a large amount, to wit, to
the amount of one thousand dollars, whereby an action
accrued to the said plaintiff to demand and have of and from
the said defendants in this suit the sum of one thousand
dollars.
" Yet the said defendants have not, nor has either of them
(although often requested so to do) as yet paid the said sum
of one thousand dollars above demanded, or any part thereof,
to the said plaintiff, but have hitherto wholly neglected and
refused, and still neglect and refuse so to do."
The declaration is against all the defendants, as joint
obligors. Fender and Wilson were served with process, and
appeared and filed a general demurrer to the declaration.
The defendant, Deeds, was not served with process, nor was
any alias issued for the purpose of bringing him before the
court.
He did not appear. The demurrer was overruled by the
court, and judgment entered by the court against Fender and
Wilson, on' the 10th of May, 1862.
The form of the judgment is as follows: " And thereupon
the said defendants say, that they will stand by their demurrer.
Whereupon it is considered by the court, that the said plaintiff
ought to have judgment in the premises. It is thereupon
considered and adjudged by the court, that the plaintiff have
and receive of the said defendant his debt in the sum of one
thousand dollars, that being the penalty of the bond upon
which the suit is brought, but that the said sum of one thou-
sand dollars be liquidated on the payment of $411.67 — four
hundred and eleven, sixty-seven one hundredths dollars —
damages by the plaintiff herein in this behalf sustained, as
1863.] Fender et al. v. Stiles. 463
Opinion of the Court.
agreed upon by the respective parties to this suit, in open
court. And it is further considered, that the said plaintiff
recover and have from the said defendants his costs and
charges by him in and about this suit expended, and that
execution issue for the said debt and costs herein to be taxed."
From that judgment, the defendants, Fender and Wilson,
took this appeal, and assign for error :
1. That the court below overruled their demurrer to the
declaration ; and
2. That judgment was entered against two only, of three
defendants.
Messrs. J. H. Knowton, and L. E. DeWolf, for the appel-
lants.
Messrs. Leland & Blanchard, and George P. Goodwin,
for the appellee.
Mr. Chief Justice Caton delivered tne opinion of the
Court :
The only question in this case, of the least importance, is as
to the sufficiency of the declaration. That must show, either
that the obligors had notice of the action against the obligee,
and an opportunity to defend it, or else, that Atkins really
had a good cause of action on which he recovered, or might
have recovered, against the obligee. Such we regard the
rights of the obligors in a bond of indemnity. There is no
averment that the obligors had any opportunity of defending
any action or proceeding against the obligee ; but the bond
shows upon its face, that Atkins had a cause of action against
the plaintiff, upon which he had a right to recover, and that
bond is set out in, and constitutes a part of, the declaration.
It shows that Atkins had deposited money with Stiles, as
stakes upon a horse-race. And we know, as a matter of law,
that Atkins had a right to recover from Stiles the money thus
deposited, no matter. what the event of the race was. The
case is the same as if the bond had recited, that Stiles had so
464 Wales et ah. v. Bogue. [April 1
Syllabus.
much money in bis hands, which Fender wanted him to pay
over to him, to indemnify him for doing which, the bond was
given. Could any other averment or statement be required,
in order to show that Atkins had rightfully recovered against
Stiles ? The declaration is sufficient.
Three parties were sued, and two only were served, and
judgment was rendered only against them; and this is com-
plained of as error. This was in pursuance of the express
and literal provisions of the statute,* and was, of course, right.
There is some complaint about the amount of damages.
This amount was expressly agreed upon by the parties, as
appears from the record.
The judgment is affirmed. Judgment affirmed.
Horatio Wales et al.
v.
Virgil A. Bogue.
1. Judgment — in debt on penal bond — its form. In a judgment in
debt upon a penal bond, it was considered that the plaintiffs recover the
sum of ten thousand dollars, their debt, being the penalty of the bond,
and ordered that execution issue for a less sum which was assessed as
damages by the jury. The judgment was regarded informal, and subject
to be reversed on error. \
2. Same — if irregular, cannot be attacked collaterally. But it was held
not so irregular as to be void, and in a collateral proceeding, as in eject-
ment, where the party derived title under a sale on execution issued upon
such a judgment, it was deemed sufficient.
3. Penal Bond — lights of obligee. In an action of debt upon a penal
bond, the plaintiff has no right to receive any part of the debt, but only
the damages and costs, which will operate to satisfy the whole debt.
4. Judgment lien — upon after acquired property. Real estate acquired
by a judgment debtor after the rendition of the judgment, becomes subject
to the statutory lien of the judgment.
* Rev. Stat. 1845, 413, sec. 6.
+ See Eggleston et al. v. Buck, ante, 254.
1863.] Wales et al. v. Bogue. 465
Statement of the case.
5. Discharge in bankruptcy — its effect upon prior liens. The dis-
charge in bankruptcy of a judgment debtor, will not affect the judgment
lien which had previously attached to the lands of the debtor.
6. Ejectment — equitable title. An equitable title forms no bar to a
recovery in ejectment. In that action legal rights alone can be considered.
7. Judgment lien — as against rights of cestui que trust. Where a party
purchased land in his own name, but with the money and as the trustee of
another, a conveyance by the trustee to the cestui que trust would pass the
title, subject to the lien of a judgment obtained by a third person against
the trustee while the title remained in him. And if the conveyance to the
cestui que trust should be made after a sale on execution upon such judg-
ment, no title whatever would pass thereby.
Appeal from the Circuit Court of the county of Ogle;
the Hon. John V. Eustace, Judge, presiding.
Yirgil A. Bogue instituted an action of ejectment in the
Circuit Court, against Horatio Wales and Chester K. Wil-
liams, for the recovery of certain premises situated in Ogle
county.
The plaintiff below, in establishing his chain of title, in-
troduced in evidence a judgment against one Kellogg and
some other persons. The question of the sufficiency of that
judgment being presented, the form of it is given.
The judgment was in debt upon a penal bond, and after
reciting the verdict of the jury, which found the debt to be
ten thousand dollars, and assessed the damages at three
hundred and eight dollars and fifty-five cents, proceeded thus :
" Wherefore it is considered by the court that the said plaintiffs
do recover of the said defendants the said sum of ten thousand
dollars, their debt aforesaid : and it is ordered by the court,
that the said plaintiffs have an execution against the said
defendants for the sum of three hundred and eight dollars
and fifty-five cents, their damages in form aforesaid assessed,
together with their costs," etc.
All the other facts of the case necessary to an understand-
ing of the questions decided, will be found in the opinion of
the court.
The verdict and judgment below, were in favor of the plain-
tiff. The defendants prosecute this appeal.
59— 31st III.
4:66 Wales et al. v. Bogue. [April T.
Opinion of the Court.
Mr. Justice Walker delivered the opinion of the Court :
This was an action of ejectment, for the recovery of a part
of the west balf of the S. E. 17, 23 K, 8 E. Appellee, on
the trial below, introduced in evidence a certificate of entry,
by O. W. Kellogg. Also, a copy of a judgment in the Ogle
Circuit Court, in favor of the People for the use of Henry
Khines, and against Kellogg and other defendants, rendered
on the 27th day of March, 1841. From this copy it appears
that the court rendered judgment for ten thousand dollars
debt, and three hundred and eight dollars and fifty-five cents
damages, and awarded execution only for the damages and
costs. He next introduced an execution issued upon this judg-
ment, dated on the 22d day of November, 1841, for the damages
and costs. It was returned " no property found," on the
5th day of February, 1842. Next, apluries execution, dated the
26th day of November, 1847, for the debt, damages and costs,
indorsed to be satisfied upon the payment of the damages
and costs.
The return on this latter execution shows a sale of the
property in controversy, to Edward F. Dutcher, on the 25th
day of February, 1848. Next, a deed from the sheriff to
Dutcher, for the premises, dated the 3rd day of December,
1849. Also, a deed from Dutcher and wife, to Zenas Apling-
ton, bearing date the 13th day of January, 1850 ; and lastly,
a deed from Aplington to appellee.
Appellant, Williams, then offered to prove that he was in
possession of the premises in the year 1840, and so continued
until the sale by the sheriff. That he fenced and broke the
same, and that his improvements were made before the land
was entered by Kellogg. That other persons occupied other
portions of the eighty acre tract of land, and that Kellogg
was, by the occupants, appointed to enter it for their benefit,
and to convey to them their respective portions. That each
of the occupants furnished his proper proportion of the
money necessary to enter the land of the government, and
1863.] Wales et al. v. Bogue. 467
Opinion of the Court.
that the said appellant furnished the money necessary to enter
his part. Also, a deed from Kellogg to himself, which was
not preserved in the record, nor is its date given. Also, a cer-
tificate of discharge of Kellogg as a bankrupt, in the District
Court of the United States, which is not embodied in the bill
of exceptions. But it is stated, that the certificate bears date
in 1842. The court, however, rejected all of this evidence of
the appellants, and the jury returned a verdict against them,
on which a judgment was rendered.
The judgment read in evidence was, no doubt, informal,
and might have been reversed on error. But it was not so
irregular as to be absolutely void. It found the amount of
the debt and damages. It declared that the plaintiffs should
recover the damages and costs, and awarded execution.
This was informal, but it declared the legal rights of the
parties ; as, under the law, plaintiffs had no right to receive
any part of the debt. He was only permitted to receive the
damages and costs, which would operate to satisfy the whole
debt. Although erroneous, it was binding upon the parties
until reversed.
The first execution was issued within a year from the date
of the rendition of the judgment, and perpetuated the lien for
the statutory period of seven years, on all of the real estate of
the defendant within the jurisdiction of the court. And sub-
sequently acquired property became subject to the lien and
liable to levy and sale, under an execution on this judgment.
Although the property in controversy was acquired after the
judgment was rendered, it was levied upon and sold under a
legal and binding execution, which was in all respects suffi-
cient to pass the title to the purchaser.
Even if Kellogg did obtain the benefit of a discharge undei
the bankrupt act, it was after the lien of the judgment had
attached ; and the discharge did not affect the lien. The dis-
charge may have passed the title to the premises to his
assignee, subject to be defeated by a sale under execution
on the judgment, but it could not operate to divest the lien.
The eleventh section of the bankrupt law, fully recognizes the
4£8 Waxes et al. v. Bogtje. [April T.
Opinion of the Court.
binding force of such liens, and empowers the assignee to
redeem the property from them, under the direction of the
court. The third section of the act provides, that the bank-
rupt's property shall vest in the assignee, as fully as the same
was vested in or might be exercised by the bankrupt at or be-
fore the time of his bankruptcy. From these provisions it is
manifest, that the assignee took the property precisely as it
was held by the bankrupt.
Had the evidence been received, that Kellogg only pur-
chased this property as a trustee for appellant, Williams, it
would only have established an equitable title in the latter.
And there is no rule of practice better settled than that an
equitable title forms no bar to a recovery in ejectment. In
that trial legal rights alone can be considered. And the deed
executed by Kellogg to Williams, only conveyed the grantor's
title subject to liens, if it was made previous to the sale on
execution, and if made after, then it passed no title of any
description.
Appellee having exhibited a perfect chain of title from the
general government to himself, was entitled to recover, unless
it was rebutted by a better legal title, in the appellants, or
outstanding in another person. If appellant, Williams, has
any remedy on the state of facts which he proposed to prove,
it is in a court of equity, where matters of trust are cogniza-
ble and protected.
The court below, therefore, committed no error in exclud-
ing appellant's evidence from the jury, as it could, at most,
have established only an equitable title.
The judgment of the court below is therefore affirmed-
Judgment affirmed.
1868.] Johnston v. The People. 409
Statement of the case.
James V. Johnston
The People of the State of Illinois.
1. Non est factum — when pleadable. The plea of non est factum is
not a proper plea to a scire facias upon a recognizance which has become a
matter of record.
2. Recognizance — by whom to be taken. A party having been exam-
ined upon a charge of larceny before a single justice of the peace, was re-
quired to enter into a recognizance for his appearance at the next term of
the Circuit Court ; failing to comply with this requirement, he was com-
mitted to jail. Four days afterwards, the committing magistrate, alone,
took the recognizance of the prisoner, and the recognizance was held to be
valid.
3. Sunday —judicial acts. Generally, judicial acts cannot be performed
on Sunday.
4. Same — entering into recognizance — by the common law and the stat-
ute. But the entering into a recognizance by one charged with a criminal
offense, is not such a judicial act as to render its execution void, either at
the common law or under the 144th section of the criminal code, because
it was entered into on Sunday.
5. Same — acts of necessity under the statute. The 1 44th section of the
criminal code which prohibits all labor on Sunday, works of necessity and
charity excepted, does not mean by the word " necessity," a physical and
absolute necessity, but a moral fitness or propriety of the work done undei
the circumstances of each particular case.
G. Any work, therefore, necessary to be done to secure the public safety
by the safe keeping of a felon, or delivering him to bail, must come within
the true meaning of the exception in the statute.
Writ of Error to the Circuit Court of the county of
Jo Daviess ; the Hon. Benjamin R. Sheldon, Judge, pre-
siding.
Charles McClellan having been arrested on a charge of
larceny, was, on the 5th day of June, 1861, brought before
Henry C. Park, Esq., a justice of the peace in the county of
Jo Daviess, for examination, and was required by the justice
to enter into a recognizance for his appearance at the next
term of the Circuit Court. Failing to comply with this
requirement, the prisoner was committed to jail. On the
470 Johnston v. The People. [April T.
Briefs of Counsel.
9th of the same 'month, which was Sunday, the prisoner, with
James C. Johnston as his security, entered into a recognizance
before the committing magistrate, Park, and was thereupon
discharged from imprisonment.
McClellan failing to appear in pursuance of the terms of
his recognizance, which had been duly certified to the Circuit
Court, a judgment of forfeiture was entered thereon, and on
the 3rd day of October, 1862, a scire facias issued, to which
Johnston, the security, pleaded, first, non est factum, and
second, that the supposed recognizance was executed by the
parties and approved by the justice on Sunday, and was
therefore void.
Issue was joined upon the plea of non est factum, and to
the second plea a demurrer was interposed, which was sus-
tained by the Circuit Court.
The issue upon the first plea being, by agreement, submitted
to the court for trial, was found against the defendant, John-
ston, and an execution was awarded accordingly.
Johnston thereupon sued out this writ of error, and the
questions presented are, first, whether the plea of non est
factum was a proper plea in this proceeding ; second, whether
the committing magistrate had authority to take the recogni-
zance; and third, whether the recognizance was void by
reason of having been executed and approved on Sunday.
Messrs. E. A. Small, and Leland & Blanchard, for the
plaintiff* in error.
1. A single justice has no power to bail a prisoner out of
jail, but a judge or two justices are necessary. Purple's
Stat. 409, sec. 252. A recognizance entered into before one
who has no authority to take it, is void. Pate v. The People,
15 111. 221 ; Solomon v. The People, 15 111. 291 ; Shattuck v.
The People, 4 Scam. 477 ; Commonwealth v. Loveridge, 11
Mass. 337; State v. McGunnegle, 3 Missouri, 702.
2. The recognizance having been entered into on Sunday,
was void for that reason.
First, it is void under the 144th section of the criminal
13.] Johnston v. The People. 47 1
Briefs of Counsel.
code (Eev. Stat. 1845, 177), which prohibits the disturbance
of the peace and good order of society by labor or amuse-
ment on Sunday, works of necessity or charity excepted.
An examination of the English cases will establish the
general proposition that any labor, public or private, on the
Lord's day, having been prohibited by statute, all contracts on
that day are void. Fennell v. Ridlen, 11 Eng. Com. Law,
517 ; Smith v. Sparrow, 13 Eng. Com. Law, 351.
Whether the labor must have been within " one's ordinary
calling " is of no moment here, as these words are not in our
statute. Gillett v. Mawmun, 1 Taunt. 136.
In Indiana, under a statute to the effect that if any person
shall be found at common labor on Sunday he shall be fined,
etc., a note and a replevin bond executed on Sunday were
held void. 4 Ind. 621 ; 7 Blackford, 479.
Similar in principle are the decisions in Alabama, under a
statute substantially like that in Indiana. 13 Ala. 403.
So also in New York. 19 Barb. 581.
So in Vermont, 18 Yermont, 379.
So in Maine. 26 Maine, 464.
So in Michigan. 2 Douglass, 73.
And in Massachusetts, in Pattee v. Greely, 13 Metcalf, 284.
See also, Varney v. French, 19 N. Hamp. 233.
Second, a judicial act performed on Sunday is void by the
common law. Baxter v. The People, 3 Gilm. 384 ; Darling
v. Hubbell, 9 Conn. 355. The taking of a recognizance is a
judicial, not a ministerial act. State v. Sahar, 33 Maine, 539 ;
Mory v. Elliott, 8 Cowen, 27 ; Chapman v. The State, 5
Blackf. Ill; Pearce v. Atwood, 13 Mass. 324; Common-
wealth v. Little, 1 A. K. Marshall, 566 ; Commonwealth v.
Mason, 4 A. K. Marshall, 456 ; Commonwealth v. Edwards,
1 J. J. Marshall, 352; Todd c& Means v. The State, 1 Mis-
souri, 403.
Mr. D. P. Jones, State's Attorney, for the People.
The plea of non est factum was not a proper plea in this
proceeding. That plea operates as a denial of the execution
472 Johnston v. The People. [April T.
Opinion of the Court.
of the instrument in point of fact} the defendant cannot
deny, by such plea, its validity in point of law. Steph. PL
158; l'Saund. PI. and Ev. 312, 658, 869; 5 Co. 119 a/ 1
Mod- 58 ; 2 Saund. 154 and 59, note 3.
Where an instrument is void by statute or at common law,
as in cases of usury, gaming, etc., that defense must be
pleaded specially, and cannot be set up under the plea of
non est/actum. 1 Saund. PL and Ev. 904.
The defense that the recognizance was entered into on
Sunday, comes within this rule.
The taking of the recognizance was not such a judicial act
as might not be done on Sunday. 5 Term R. 170.
The exception in the statute, of works of necessity, does not
imply an absolute necessity, but acts in which there is a
moral fitness and propriety, are included. 6 Mass. R. 76 ;
13 ib. 354; 4Cush. 2*4.
Mr. Justice Breese delivered the opinion of the Court :
This is a scire facias upon a recognizance taken before a
justice of the peace, and duly certified to the Circuit Court of
Jo Daviess county. When so certified, it became a record of
that court ; consequently, the plea of non est factum was not
a proper plea to the action.
It does not appear from the recognizance, that the prisoner
had been committed by two justices of the peace. The con-
dition recites that the prisoner was brought before the justice
of the peace who took the recognizance, on the fifth day of
June, on a charge of larceny. This gave the justice juris-
diction to hear the charge and admit the party to bail.
It is objected, however, that the recognizance is void, having
been taken and acknowledged on Sunday, and therefore not
binding on the surety.
It is said, that entering into a recognizance, is a judicial
act, which, by the common law, if performed on Sunday
renders the act void.
Generally, judicial acts cannot be performed on Sunday,
yet, verdicts of juries have been received on that day, and
1863.] Johnston v. The People. 473
Opinion of. the Court.
held valid. Hoghtaling v. Oshorn, 15 Johns. 119 : Baxter
v. The People, 3 Gilm. 368.
We do not consider the act of entering into a recognizance
to be such a judicial act as to render its execution void
because it was entered into on Sunday. It has none of the
elements of a judicial proceeding, except that it is taken ana
acknowledged before a judicial officer, and is not, therefore,
void by the common law.
It is said, however, that it is a violation of section 144 of
the criminal code, and therefore void.
That section imposes a fine not exceeding five dollars upoo
any person who shall knowingly disturb the peace and good
order of society by labor or amusement on Sunday, works of
necessity and charity excepted.
What are works of necessity and charity % As was said in
the case of Flagg v. The Inhabitants of Millhury, 4 Gushing,
244, we are not to understand by the word " necessity," a
physical and absolute necessity, but a moral fitness or pro-
priety of the work done under the circumstances of each
particular case. Any work, therefore, necessary to be done
to secure the public safety, by the safe keeping of a felon, or
delivering him to bail, must come within the true meaning of
the exception in the statute. Neither the peace or good order
of society is disturbed by such a proceeding, which may be
both secretly and silently conducted. And besides, it might
be possible a prisoner could not secure the attendance of his
surety on the next day, the consequence of which would be,
that he would, though innocent, have to be committed to jail.
It would be a charitable act, under such circumstances, to take
a recognizance. We are therefore of opinion, that both at
common law, and in the exceptions of our statute, the recog-
nizance, though taken on Sunday, was valid and binding.
The judgment of the Circuit Court is therefore affirmed.
Judgment affirmed,
60— 31st III.
474 Edwards et at. v. Edwards et al. [April T.
Statement of the case.
James 0. Edwards et al.
v.
George J. Edwards et al.
1. Jury to assess damages — form of the oath — when to object. It can-
not be objected for the first time on appeal, that a jury empanneled to as-
sess damages, were sworn " to try the issues," when the party objecting
was present and contested the assessment, and took a bill of exceptions.
He should have objected then to the form of the oath, so that the proper
oath could have been administered.
2. Measure of damages — in action on injunction bond. Where a
party is restrained by injunction from taking possession of a farm, from
March to September, he is not restricted, in an action on the injunction
bond, to proof of the value of the use of the land up to the time of the
dissolution of the injunction, but he may show that by reason of being
kept out of the land, he lost the crops for the season.
3. The question in such case is not, what the land was worth to the
complainant in the injunction suit, but what was the damage to the de-
fendant, by reason of being kept out of possession during that period.
Appeal from the Circuit Court of Mercer county; the
Hon. Aaron Tyler, Judge, presiding.
This was an action of debt upon an injunction bond, insti-
tuted in the Circuit Court, by George J. Edwards, Robert A.
Edwards and James M. Mannon, for the use of George J.
Edwards, against James O. Edwards and Lewis W. Thompson.
It appears from the declaration, that, at the September term,
1857, of the Circuit Court of Rock Island county, George J.
Edwards recovered a judgment in an action of ejectment
against James O. Edwards, for certain lands situate in Mercer
county.
On the 20th of February, 1860, a writ of possession waa
issued upon that judgment, directed to the sheriff, the said
Mannon, and while this writ was in the hands of the sheriff,
on the 8th day of March, 1860, the said James O. Edwards,
the defendant in the action of ejectment, exhibited his bill in
chancery in the Circuit Court of Mercer county, against the
1863.J Edwards et al. v. Edwards et al. 475
Statement of the case.
said George J. Edwards, the plaintiff in the action of eject-
ment, Robert A. Edwards, and James M. Mannon, the sheriff,
praying, among other things, that an injunction issue, enjoin-
ing any further proceedings under the writ of possession.
The injunction was awarded, on condition that the complainant
execute bond to the defendants in the suit in chancery in the
penal sum of $1,500, conditioned as the law requires.
Upon such bond being given, with Lewis W. Thompson as
security, an injunction was issued in pursuance of the prayer
in the bill, and further proceedings under the writ of posses-
sesion were thereby stayed.
Subsequently, such proceedings were had in the suit in
chancery, that upon the hearing, the injunction was dissolved
and the bill dismissed, and a decree against the complainant
for costs, taxed at $2.25.
Upon that injunction bond this action of debt was brought,
the plaintiffs alleging that by the force and effect of the said
writ of injunction, the plaintiff, George J. Edwards, was kept
out of the possession of the said premises, and deprived of
the use and enjoyment of the same, and of the rents, issues
and profits thereof, from the 10th day of March, 1860, the
time of the service of the writ of injunction, until the 1st of
September following, when the injunction was dissolved,
whereby they had sustained damage to the amount of $1,500,
and that the defendants had not paid the decree for $2.25
costs, etc.
A demurrer to the declaration was overruled, and the
defendants abiding by their demurrer, it was ordered by the
court, that the plaintiffs have judgment for their debt and
damages, and because the same were unknown to ' the court,
a jury was empanneled to assess the amounts. Thereupon, a
jury was empanneled and sworn " to well and truly try the
issues joined." Upon this inquest of damages the plaintiffs
introduced evidence showing the quantity of land in cultiva-
tion upon the premises mentioned, and the value of the use
of such premises from the time of the service of the writ of
Injunction until the dissolution of the injunction. It appeared
476 Edwards et al. v. Edwards et at. [April T.
Statement of the case.
there was a large crop of corn and grass on the farm that
season, none of the corn being gathered on the 1st of Sep-
tember, 1860.
The defendants asked a witness the following question,
which was objected to by the plaintiffs, and the objection sus-
tained by the court :
" What would the use of the premises be worth to any one,
from the 10th of March to the 1st of September, I860, if on
the 1st of September, 1860, they had to be surrendered, with
all the crops then standing and growing thereon '( "
The witness, who was a tenant on the premises, stated, in
answer to a question of the court, " that he gathered the crop
from his part, as tenant of defendant, Edwards, and gave him
the landlord's share, and the other tenants did the same thing.
The plaintiffs did not get possession of the lands that fall, nor
any benefit from the crops."
The plaintiffs also gave in evidence, the injunction bond,
the bill of costs in the suit in chancery, and the order dismiss-
ing the same.
The defendants then moved the court to exclude all the
evidence having reference to the value of the use of the
premises pending the injunction, as being irrelevant; insisting
that the damages for being kept out of possession were not
included in the condition of the bond. But the court over-
ruled the motion, and the defendants excepted.
The court then gave to the jury the following instruction
on the part of the plaintiffs :
"That if they find for the plaintiffs, they will find the
amount of their debt, to wit, the penalty of the bond, and
also assess the damages at such sum as they believe, from the
evidence, the plaintiffs to have sustained by reason of being
deprived of the possession of the premises mentioned, from
the 10th of March, 1860, to the 1st of September, 1860."
The court refused to give the following instructions num-
bered one and two, asked on the part of the defendants :
" 1. The court will instruct the jury, that the plaintiff is
not entitled to recover in this case, anything more than his
1863.] Edwards et al. v. Edwards et al. 477
Statement of the case.
costs adjudged him on the dismissal of the injunction case of
James O. Edwards v. George J. Edwards et al.
" 2. The jury are instructed that they are not to regard
any evidence of the value of the use of the premises, except
such evidence as relates to the actual value of their use, from
the 10th March, 1860, to the 1st September, 1860."
The court, of its own motion, instructed the jury as follows :
" The jury are instructed that they are not to regard any
evidence of the value of the premises, except such evidence
as will help them to fix the actual value of their use from the
10th March, 1860, to the 1st September, 1860."
The defendants excepted to the giving of the instruction
asked by the plaintiffs, and that given by the court upon its
own motion ; and to the refusal of the court to give instruc-
tions one and two, asked by themselves.
The jury found for the plaintiffs their debt, $1,500, and
assessed their damages at $372.25.
A motion for a new assessment, and in arrest of judgment,
was overruled, and a judgment entered in accordance with
the finding of the jury. The defendants below thereupon
took this appeal.
The assignment of errors presents the following questions :
First. Whether a recovery of damages can be had in an
action upon the injunction bond, on account of being deprived
of the use of the premises, unless such damages were assessed
by the court upon the dissolution of the injunction, or until
fixed by a judgment in another action.
Second. Whether it was proper to swear the jury " to try
the issues," instead of swearing them jto assess the damages;
and
Third. As to the rule of damages with reference to the
nse of the premises.
Messrs. Gloves, Cook & Campbell, for the appellants.
Mr. H. M. Wead, for the appellees.
478 Edwards et al. v. Edwards et al. [April T.
Opinion of the Court.
Mr. Chief Justice Caton delivered the opinion of the
Court :
We have decided the main question here presented in
Brown v. Gorton, ante, 416, and shall spend no more time
with it now. There are some questions presented, we presume,
as make-weights upon the asssessment of damages. One is,
that the jury was sworn to try issues, instead of to assess the
damages. As the defendants were present, and contested the
assessment of damages, and took a bill of exceptions, they
should have objected to the form of the oath, so that the
proper oath could have been administered.
The principal question, however, on the assessment of
damages, is, as to the use of the land. The injunction was
issued early in the spring, and was dissolved in September,
and during that time restrained the party from taking posses-
sion of a farm. The defendants insisted that the measure of
damages was the value of the use of the land up to the time
when the injunction was dissolved. "We think the court
properly allowed the evidence to take a wider range, and
show that being kept out of the land till the first of Sep-
tember, occasioned the loss of the crops for the season. The
question is not, what the land was worth to the complainant
in the injunction suit, but what was the damage to the defend-
ant for being kept out of possession during that period ? We
see nothing wrong in the rule laid down by the court. Some
other minor questions are made, which we do not think
necessary to examine in detail.
The judgment is affirmed. Judgment affirmed.
1863.] Clark v. The People. 479
Statement of the case.
William Clark
v.
The People of the State of Illinois.
1. Evidence — competency — res gestm. It is not competent, on the trial
t'f a party charged with crime, to prove the expressions of a third person,
made, out of the presence of the accused, relative to his guilt ; nor to show
that an officer had sent a message that the accused, who had committed the
crime, was in jail. Such matters are no part of the res gestm.
2. Error will not always reverse a judgment. But a judgment of con-
viction will not be reversed because of the improper admission of such
proof, if it appear from the whole case that justice has been done, and that
the error did not operate to the prejudice of the prisoner.
Writ of Error to the Recorder's Court of the City of
Chicago ; the Hon. Robert S. Wilson, Judge, presiding.
At the October term, 1862, an indictment was returned by
the grand jury into the court below, against the plaintiff in
error, William Clark, charging him with having stolen two
bay mares, the property of one Archibald Scott. At the
same term, the prisoner was put upon his trial, and a verdict
of guilty being returned by the jury, a judgment was entered
accordingly.
It appears the mares were stolen from Scott, in Henry
county, in this State, and were found in the possession of the
prisoner in the city of Chicago. The facts and circumstances
tending to establish the guilt of the accused, are sufficiently
stated in the opinion of the court.
But exception being taken to some of the expressions of
two of the witnesses on the part of the prosecution, Elizabeth
Scott and Mary Buchanan, their evidence will be given.
Elizabeth Scott testified as follows :
I live in Henry county, Illinois. On the night of the 7th of
August last, my husband, Archibald Scott, put into his pasture
two bay mares. The next morning they were gone. They
were his property. He is sick abed, and could not come here.
4S0 Clark v. The People. [April T.
Statement of the case.
The horses are worth one hundred dollars apiece to us.
John M. Burns brought the horses home- I knew the horses
were in Chicago, because the sheriff of Mercer county sent
word to the sheriff of Henry county, that the horses were in
Chicago, and that Clark, the man who stole them, was in jail.
They were our old family team. I know the horses that
were returned to us by Burns, to be the same horses that were
taken from us on the night of the 7th of August last.
On cross-examination, she said: I do not know what the
cash value of the horses is ; they are worth one hundred dol-
lars each to us ; I know nothing about this matter except what
I have stated.
Mary Buchanan said :
This defendant came to our barn Sunday morning, and
brought a horse there ; he then went and brought two more.
I know this is the same man. My husband lent him twelve
dollars. He said that he wanted to pay freight on some horses
that were at the depot. I did not want my husband to lend
him the money, because I thought the horses were stolen. My
husband let him have twelve dollars, and he left a horse as
security for the money. Our stable is in this city, — Chicago.
On cross examination, she said : There was another man
came with this one. He was a tall, slim, dark-skinned man,
with light whiskers. I remember this man. He borrowed
twelve dollars of my husband to pay the freight on some horses.
The other man was present. He sat on the steps close by,
with a newspaper up to his face. He seemed to be writing
something with a pencil. He told this man to feed the horses
and take good care of them. He told my husband to feed and
take care of them too. One of Bradley's men arrested both
of these men and took the horses awTay. The man that took
the horses away said that he was an officer, and that he would
be responsible for the twelve dollars. I saw both of the men,
this man Clark and the other man, in Mr. Bradley's office. I
should not know the other man if I saw him. This man
came to the stable first with one horse. Then the other man
and he, came with two horses.
1863.] Clark v. The People. 481
Opinion of the Court.
The defendant objected to the statement made by the
witness Scott, of the message sent to ihe sheriff of Henry
county that the horses were in Chicago, and the prisoner,
who stole them, in jail; and the statement of the witness
Buchanan of the opinion she had expressed to her husband
that the horses were stolen. But the court overruled the
objections, and the defendant excepted.
The court below refusing a motion for a new trial, the
defendant sued out this writ of error.
The only questions presented upon the record, are, as to the
admissibility of the statements of the witnesses mentioned ;
and whether this court will reverse a judgment upon so
unimportant a question, if substantial justice has been done
upon the whole case.
Messrs. Samuel M. Felker, and Arthur F. Windett, for
the plaintiff in error.
Mr. D. P. Jones, State's Attorney, for the People.
Mr, Justice Walker delivered the opinion of the Court:
It is insisted that this judgment should be reversed, be-
cause the court below admitted improper evidence. It was
what Mrs. Buchanan said at the time the horses were brought
to the stable of her husband, and the word sent to the sherifl
of Henry county, that was objected to, as improper evidence.
The opinion of the witness, expressed to her husband, in the
absence of the prisoner, that the horses were stolen, was
clearly incompetent evidence. And of the same character
was the message sent the sheriff, that they had arrested
accused, who had stolen the horses. This was no part of the
res gestae. It was wholly disconnected with anything done
by the prisoner, and he was not in the least responsible
for it.
But the question arises, whether this evidence could, in any
event, operate to the prejudice of the prisoner. If so, the
judgment must be reversed. The object of instituting coarts
61— 31st III
4:82 Clark v. The People. [April T.
Opinion of the Court.
is to dispense justice, and prevent wrong. And where
justice has been fully and properly dispensed in a case, the
object of the law has been attained. It therefore follows,
that if the great object of a trial has been had, and slight
departures from forms have occurred, it is not a sufficient
reason for setting aside the proceedings, and for pursuing
again all of the forms of a new trial to arrive at the same
result. If then, this evidence could not have prejudiced the
rights of the accused, there is nothing of which he can right-
fully complain, and hence the judgment should not be dis-
turbed.
When considered in connection with all the evidence in
the case, it seems to be entirely immaterial, and could not
have changed the result of the verdict. It seems only to
have been incidentally stated by the witnesses, and explana-
tory of other acts that had been done by them, and not called
for or relied upon by the prosecution. It could not have
misled the jury, and consequently was not prejudicial to the
rights of the accused.
Upon the whole evidence of the case, it is urged that the
jury were not warranted in their finding. The theft of the
horses by some one is clearly proved. Of this there seems to
be no doubt. And, as evidence of the guilt of the accused,
he is found a few days afterwards in the possession of the
horses. It is proved that he took one of them to the stable
of the witness, and left it to be kept, and also pledged it for
money to pay the railroad freight on the others. When he
pledged this horse, he said nothing about its belonging to
another person. He acted with it in all respects as though it
was his own. Nor did he say anything to the stable-keeper
about it or the others belonging to Heffiin, at that or the sub-
sequent interview. Neither of them pretended that Heffiin
was the owner. All that is relied upon to prove that fact,
was Heffiin 's directions to the stable-keeper and to accused to
feed and take good care of the horses, when the others were
afterwards brought to the stable, and also the declarations of
the prisoner at the time he was arrested.
These directions of Heffiin in reference to the care of the
1863.] Clark v. The People. 483
Opinion of the Court.
horses, and the prisoner's declarations to the officer who
arrested him, that the horses belonged to Hefflin, and that he
was only taking care of the horses for Hefflin, were all properly
before the jury for their consideration. They were evidence,
and the jury no doubt gave them their full weight, when
considered in connection with the other circumstances in the
case. He, throughout, acted as the owner of the horses.
He pledged one to obtain money to pay freight on the others.
He made all of the arrangements with the keeper of the
stable, and brought them all and placed them in his custody.
And Hefflin said nothing to indicate that he claimed any
interest in the property. These facts clearly prove that
accused was the principal in the transaction, the active man,
and not that he was acting for another.
In view of all this evidence, we are unable to see how the
jury could have arrived at a different conclusion than they
did, and the judgment of the court below must be affirmed.
Judgment affirmed.
William Clark
v.
The People of the State of Illinois.
Writ of Error to the Kecorder's Court of the City of
Chicago.
Mr. Justice Walker: The facts in this do not differ
materially from the preceding case, and do not require a
separate opinion, as all of the questions involved in this case,
are discussed and determined in that.
The judgment of the court below is affirmed.
Judgment affirmed,
484 Neustadt et al. v. Illinois Central K. R. Co. [April T.
Statement of the case.
Morris Neustadt and the City of La Salle
v.
The Illinois Central Railroad Company.
1. Exemption from taxes — Illinois Central Railroad Company.
Under the act of February 10, 1851, incorporating the Illinois Central Rail-
road Company, no city or town authority can impose a tax for municipal
purposes, on the property of that company which may be within its limits.
2. Acts of incorporation are contracts, and are inviolable. The act to
incorporate the Illinois Central Railroad Company, which declares certain
exemptions of the property of the company from taxation, is a contract
between the State and the company, which cannot be changed or annulled
without the consent of both contracting parties.
"Writ of Error to the Circuit Court of the county of La
Salle ; the Hon. Madison E. Hollister, Judge, presiding.
The only question arising upon the record in this case, is,
whether the act of the General Assembly, passed the 23rd
day of June, A. D. 1852, incorporating the city of La Salle,
confers upon said city the right to levy a tax, for municipal
purposes, upon all the property of said railroad company,
situated within the limits of said city, or does the act of the
General Assembly, passed February 10th, 1851, still continue
in force, with reference to property of said company, situated
within said city, and exempt said company from the payment
of any such taxes on any of said property.
The Circuit Court held that the company was not liable to
pay such taxes on said property, and a judgment was entered
in accordance with that view of the law.
Neustadt and City of La Salle thereupon sued out this writ
of error, and now question the correctness of the ruling oi
the court below.
Mr. E. F. Bull, for the plaintiffs in error.
Messrs. Glover, Cook & Campbell, for the defendant*
TO error.
1863.] Neustadt et al. v. Illinois Central R. R. Co. 485
Opinion of the Court.
Mr. Justice Bkeese delivered the opinion of the Court :
The question arising on this record is, have the corporate
authorities of the city of La Salle power to levy a tax for
municipal purposes upon the property of the Illinois Central
Railroad Company, situated within the limits of that city ?
By the act incorporating the Illinois Central Railroad Com-
pany, approved February 10, 1851, it is provided by section
22, that the lands selected under the act of Congress, and
thereby authorized to be conveyed, shall be exempt from all
taxation under the laws of this State, until sold and conveyed
by said corporation or trustees, and the other stock, property
and effects of said company shall be in like manner exempt
from taxation for the term of six years from the passage of
this act. After the expiration of six years, the stock, prop-
erty and assets belonging to said company shall be listed by
the president, secretary or other officer, with the auditor of
State, and an annual tax for State purposes shall be assessed
by the auditor upon all the property and assets of every
name, kind and description belonging to said corporation.
Whenever the taxes levied for State purposes shall exceed
three-fourths of one per centum per annum, such excess shall
be deducted from the gross proceeds or income herein required
to be paid by said corporation to the State, and the said
corporation is hereby exempted from all taxation of every
kind, except as herein provided for. (Session Laws 1851,
page 72.)
The act to incorporate the Illinois Central Railroad Com-
pany, of which the above section is part, is a contract between
the State and the company, which cannot be changed or
annulled without the consent of both contracting parties.
In consideration of the undertaking of the company to
construct a great thoroughfare, which should involve the
expenditure of millions, and which was an experiment, and
seven per cent, of the gross amount of its receipts or income
to be paid to the State, the company was relieved from the
payment of all other than State taxes, to be assessed as
486 Briggs v. Adams. [April T.
Statement of the case.
provided for in this section. The language is plain and
explicit, " The said corporation is hereby exempted from all
taxation of every kind except as herein provided for."
This being the contract between the State and the corpora-
tion, no city or town authority can impose a tax for municipal
purposes, on the property of that company which may be
within their limits. Illinois Central Railroad Company v.
The County of McLean, 17 111. 291.
The judgment of the Circuit Court is affirmed.
Judgment affirmed.
Silas Bkiggs
v.
Geokge Adams.
1. Several defendants — judgment must be against all or none. In
actions not sounding in tort, where two or more are sued, judgment must be
rendered against all who are served, or, if that cannot be, then against none.
2. Same — exceptions to the rule. There are some exceptions to this rule
where the defense is personal, as infancy, or bankruptcy.
3. Same — rule applies to justices' courts. The rule applies as well to
actions commenced before justices of the peace, as in courts of record.
Appeal from the Circuit Court of Cook county ; the Hon.
George Manierre, Judge, presiding.
George Adams instituted suit before a justice of the peace
in Cook county, against Silas Briggs and Joel Briggs, for an
alleged breach of warranty, upon an exchange of horses.
The suit, while pending before the justice, was dismissed
by the plaintiff as to the defendant, Joel Briggs, who had
been served with process, and proceeded to judgment against
Silas Briggs, alone, who thereupon appealed to the Circuit
Court. In that court, also, judgment was rendered against
Silas Briggs, from which he appealed to this court.
The only question presented is, as to the propriety of enter-
taining the suit and proceeding to judgment against one of
1863.] Bull, Administrator, etc. v. Harris. 487
Syllabus.
the defendants, after the suit had been dismissed as to his
eo-defendant, who was in court by the due service of process.
Messrs. Claflin & Fay, and C. C. Bonnet, for the
appellant.
Mr. A. Garrison, for the appellee.
Mr. Chief Justice Caton delivered the opinion of the
Court :
In actions not sounding in tort, when two or more are sued,
judgment must be rendered against all who are served, or, if
that cannot be, then against none. There are some exceptions
to this rule where the defense is personal, as infancy or bank-
ruptcy, which are the most familiar cases. This principle
applies as well to actions commenced before justices of the
peace, as in courts of record. When one of the defendants
had been dismissed from the cause, it rendered it improper to
proceed and render judgment against the other, either in the
justice's or the Circuit Court.
It is unnecessary to consider the other errors assigned.
The judgment is reversed.
Judgment reversed.
E. P. Bull, Administrator, etc.
v.
John Harris.
1. Administrator — execution. It is error, in rendering a judgment
against an administrator, to award execution. The order should be, that
the judgment be paid in the due course of administration.
2. Settlement of accounts — evidence that everything was included.
An adjustment and settlement of accounts between parties, afford evidence
that all items properly chargeable at the time, were included. This is not
conclusive, but it would require clear and convincing proof that such
items were unintentionally omitted by the party subsequently claiming to
recover them.
488 Bull, Administrator, etc. v. Harris. [April T.
Opinion of the Court.
3. Mokal obligation — not enforcible. A mere moral obligation to
pay for services rendered, cannot be enforced at law.
Writ of Error to the Circuit Court of the county of
La Salle ; the Hon. Madison E. Hollister, Judge, pre-
siding.
John Harris presented his claim in the County Court of
La Salle county, against the plaintiff in error, as administra-
tor of the estate of Isaac H. Lamb, deceased. The claim was
allowed to the amount of $25. Harris, not being satisfied with
the amount of the allowance in the County Court, took an
appeal to the Circuit Court, where such proceedings were had,
that Harris recovered a judgment against the administrator
for the sum of $283, for which the court awarded execution.
The claim was based upon certain services alleged to have
been bestowed by Harris, in care and attention to Lamb, at
various times, in sickness. The evidence is sufficiently stated
in the opinion of the court.
Upon the rendition of the judgment in the Circuit Court,
the administrator sued out this writ of error, and now insists
that the court below erred in awarding execution, and that the
finding was against the weight of evidence.
Messrs. G. S. Eldridge, and E. F. Bull, for the plaintiff in
error
Messrs. Gray, Avery & Bushnell, for the defendant in
error.
Mr. Justice Walker delivered the opinion of the Court:
The court below erred, in awarding an execution against
the administrator. The order should have been, that the
judgment be paid in the due course of administration. This
is the settled law in this State, as announced in numerous
1863.] Bull, Administrator, etc. v. Harris. 489
Opinion of the Court.
cases in this court. For this error the judgment will be
reversed.
It is likewise urged, that the finding of the jury was
against both the evidence and the instructions of the court.
The account on which this recovery was had, runs through a
series of six or eight years previous to the death of intestate.
And the evidence shows that the settlement of the accounts
of the defendant in error, were annually made during that
time, and in no instance were these items embraced. His
books, during the time this account continued, from its com-
mencement till the last settlement, contained no such charge.
Nor is there any evidence that they were, by accident or
mistake, omitted in these settlements.
An adjustment and settlement of accounts between parties,
afford evidence that all items properly chargeable at the
time have been embraced. It is true, that it is not conclusive,
but it requires clear and convincing proof that items properly
chargeable have been unintentionally omitted by the party
claiming to recover.
In this case, no such evidence is found, or anything from
which it can be inferred. On the contrary, it seems that
these charges were intentionally omitted, and never designed
to have been made in any event. The evidence strongly
tends to show, that this service was rendered with no expec-
tation of receiving any pecuniary compensation, during the
lifetime of intestate, but that it was with the expectation, on
the part of defendant in error, that deceased would remem-
ber him in his will. There was no promise to pay on the one
part, or expectation of receiving it, as a matter of adjustment,
on the other.
There is nothing to show that there was any legal obli-
gation on deceased to pay this charge. It was, at most,
a moral obligation, which cannot be enforced. Had Lamb
lived, it cannot be supposed, in the light of this evi-
dence, that defendant in error would ever have demanded
payment for services gratuitously rendered, and for which
no charge is made, or intended to be made. We think the
62—318T III.
490 Goodrich v. Reynolds, \Yildek & Co. [April T
Syllabus.
evidence shows these charges to have been of that char-
acter.
The finding of the jury was therefore against the evidence
as well as the instructions, and the judgment of the court
below must be reversed, and the cause remanded.
Judgment reversed.
Calvin Goodbigh
v.
Reynolds, Wilder & Co.
1. Pleading — plea must answer what it purports to answer. It is a
rule in pleading, that a plea must answer all that it purports to answer.
If it purports to answer the whole declaration, and answers but a part, it is
obnoxious to a demurrer.
2. So where a declaration in assumpsit contained the common counts
and also a special count upon a promissory note, a plea which purported to
answer the whole declaration but only answered the special count, was held
bad on general demurrer.
3. Nor did the admission by the plaintiff, after the plea was filed, that
the note was the sole cause of action, dispense with this rule of correct
pleading.
4. Railroad companies — promissory notes. A railroad company have
an inherent authority to take and negotiate a promissory note in the ordin-
ary course of their business.
5. So, such company may take a promissory note in payment of capital
stock subscribed in it.
6. But they cannot, as a branch of their business, deal in notes and
bills of exchange — they can only make such paper subservient to the
great design.
7. Corporations — their organization — when it may be attacked. The
organization of a railroad company cannot be attacked collaterally, as, in
an action by an assignee upon a promissory note executed to such company.
8. Assignment of a note given to a railroad company — by whom to be
made. A promissory note made payable to a railroad company, was
assigned thus : " Sterling and Rock Island Railroad, per M. S. Henry,
President." Held, that the assignment was, prima facie, the ict of the
company by their authorized officer.
1863.] Goodrich v. Reynolds, Wilder & Co. 491
Statement of the case.
9. Assignment of note — mode of questioning it. If such assignment was
not their act, it should have been denied by plea, verified by affidavit.
10. Fraud — misrepresentation — subscribers to stock of railroad, how
affected by it. Stock being subscribed in a railroad company, must be paid,
notwithstanding the giving of a note therefor was induced by misrepresen-
tations of the agents of the company, as to the amount of stock then sub-
scribed, and the time within which the road would be completed.
11. Plea of fraud — its requisites. Moreover, a plea setting up such
a defense would be defective, if it omitted to allege that those who made
the false representations were authorized by the company to make them,
and that they knew they were false when made.
12. A plea in an action on a promissory note, setting up that the maker
was induced to give the note, by fraud and circumvention, should state dis-
tinctly in what the fraud and circumvention consisted.
13. Assignee of note — want of consideration — requisites of plea. In
an action by an assignee upon a promissory note, alleged to have been
assigned before maturity, a plea of want of consideration, to make the
defense availing, should aver that the note was assigned after it became
due.
14. Demand - — where a note is given for stock subscribed. In an action
on a note given upon a subscription to the stock of a railroad company, the
defendant pleaded that no demand had been made of the amount of stock
subscribed. Held, the company were under no obligation to make such
demand.
15. Usury — what constitutes. The reservation of interest in a note, at
the rate of ten per cent, per annum, payable semi-annually, is not usurious.
The whole interest may be lawfully reserved in advance.
16. Corporations — defects in their organization — how cured. Irregu-
larities or defects in the organization of a railroad corporation, may be
cured by subsequent legislation. Illinois Grand Trunk B. R. Co. v. Cook,
^raV,efc5.,29IU. 241.
Appeal from the Circuit Court of Eock Island county ; the
Hon. Ira O. Wilkinson, Judge, presiding.
This was an action of assumpsit, instituted in the court
below by Reynolds, Wilder & Co. against Calvin Goodrich.
The declaration contained the common counts, and a special
count upon a promissory note executed by Goodrich, on the
12th of August, 1857, to the Sterling and Rock Island Rail-
road Company, for the sum of five hundred dollars, payable
live years from the first day of September following, with
interest, at ten per cent., payable semi-annually.
4:92 Goodrich v. Refnolds, Wilder & Co. [April T.
Statement of the case.
The note was assigned before maturity, to the plaintiffs, by
the " Sterling and Rock Island Railroad, per M. S. Henry,
President."
The plaintiffs admitted that the note was the sole cause of
action sued upon.
The defendant pleaded the general issue, and fourteen
special pleas, as follows :
1. That said note was given in payment of five shares of
the capital stock of said company, which defendant had there-
tofore subscribed for, being one hundred dollars per share,
and that there was no other consideration for said note ; and
further avers, that said company had no power under its
charter to make said contract by virtue of which it received
said note, and that said note is void, because the said company
had no power to receive said note in payment of their capital
stock ; all of which the plaintiff's well knew at the time of
receiving said note.
2. That said note was given in payment of five shares of
the capital stock that the defendant had theretofore subscribed
for ; that the amount of the capital stock required to build
and equip said road was $600,000, as appears by the Articles
of Association, on file in the office of the Secretary of State,
at Springfield. Said capital stock has not been subscribed
for, nor has it been taken. All of which the plaintiff's well
knew at the time of receiving said note.
3. That the said note was given in payment of five shares
of the capital stock of said company, which the defendant had
previously subscribed for ; and that the $250,000 of the
capital stock of said company, as required by the amendments
to said charter, had not been subscribed for nor taken ; all of
which the plaintiffs well knew at the time they received said
note.
4. That the said note was given in payment of five shares
of the capital stock that the defendant had previously sub-
scribed for to said company, and that the $250,000 of capital
stock has not been subscribed for nor taken, and that the work
on said road has been suspended, and the project of building
said road has been abandoned ; all of which the plaintiffs well
knew at the time they received said note.
1863.] Goodrich v. Reynolds, Wilder & Co. 493
Statement of the case.
5. That the said note was given in payment of five shares
of the capital stock that the defendant had previously sub-
scribed for to said company ; and further avers, that said
company had^ no power, under its charter and the laws of the
land, to receive, transfer and indorse said note ; and that the
said note and the indorsements thereon are in violation of the
laws of the land, and are therefore null and void ; all of which
the said plaintiffs knew well at the time they received said
note.
6. That the said note was given in payment of five shares
of the capital stock that the defendant had previously sub-
scribed for to said company ; and further avers, that said
Miles S. Henry had no power or authority, under the charter
of said company or any amendments thereto, or by virtue of
the laws of the State — nor had the said Miles S. Henry any
authority from said company, as president or otherwise, nor
had he any authority from the board of directors of said
company — to transfer and indorse said note, as alleged in the
plaintiff's declaration. The plea further avers, that the trans-
ferring and indorsing of said note was fraudulent and in
violation of the laws of the State, and is therefore void. All
of which the plaintiffs knew well at the time of receiving said
note.
7. That the said note was given in payment of five shares
of the capital stock that the defendant had previously sub-
scribed for to said company ; and further avers, that the
defendant was induced to make, execute and deliver said note
to said company by the false and fraudulent representations of
said company, its officers and agents, in this, to wit : That before
and at the time of the giving of said note, the said company,
its officers and agents, falsely and fraudulently represented to
this defendant, that all the capital stock required to build and
equip said road had been subscribed for and in good faith
taken ; and that the said company was going to build and
equip said road immediately ; and that the cars would run
through from Sterling to Rock Island within eighteen months
or less from the date of said not* And the defendant, rely-
ing upon said representations, did make and deliver said note
4:94 Goodrich v. Reynolds, Wilder & Co. [April T.
Statement of the case.
to said compan y. And further avers, that the said capital
stock has not been subscribed for, nor has the road been built,
but the work on said road has been abandoned ; and that said
note was thus obtained by fraud from the defendant. All of
which the plaintiffs well knew at the time they received said
note.
8. That the said note was given in payment of fi.ve shares
of the capital stock that the defendant had previously sub-
scribed for to said company; and further avers, that the
defendant was induced to make and deliver said note to said
company, by the false and fraudulent representations of said
company, its officers and agents, in stating that all the capital
stock required to build, construct and procure the right of way
and buy the motive power and every other equipment neces-
sary to build and complete said road, had been subscribed for,
and in good faith taken ; and that the company would build
and equip said road immediately, and that the cars would run
through from Sterling to Rock Island within eighteen months
or less from the date of said note ; that he relied upon said
representations as being true, and therefore was induced to,
and did give said note. That said representations are untrue —
that all of the capital stock has not been subscribed for, and that
the said road has not been built, and that the company actually
refuses to build said road — therefore, the consideration for
said note has entirely failed. All of which the plaintiffs well
knew at the time they received said note.
9. That said company obtained said note from the defend-
ant by means of fraud and circumvention, and by false and
fraudulent representations made by said company, its officers
and agents, to the defendant at the time said note was given ;
all of which the plaintiffs well knew at the time they received
said note.
10. That said note was obtained from the defendant by
fraud, covin and misrepresentation of the company, its officers
and agents ; all of which said plaintiffs well knew at the time
they received said note.
11. That the defendant never received any consideration
whatever for said note ; all of which said plaintiffs well knew
at the time they received said note.
1863.] Goodrich v. Reynolds, Wilder & Go. 495
Opinion of the Court.
12. That there is no such corporation in existence, nor was
there ever any such corporation ; which fact the plaintiffs well
knew at the time of receiving said note.
13. That the directors of said company never demanded
of the defendant the amount of the capital stock by him
subscribed ; all of which the plaintiffs well knew at the time
they received said note.
14. That the contract for the payment of interest on said
note semi-annually, gives to the holder thereof a greater
amount of interest or profit than ten cents, for the use of each
and every dollar for each and every year, and is therefore
contrary to the laws of the State ; wherefore, such contract
for the payment of such interest is void ; all of which the
plaintiffs well knew at the time they received said note.
The plaintiffs interposed a demurrer to each of the pleas,
except the general issue, and the twelfth special plea, which
was a plea of nul tiel corporation. The court sustained the
demurrers, and thereupon the defendant withdrew the plea of
the general issue and the twelfth special plea, and abided by
the remainder of his pleas.
Whereupon, the court rendered final judgment upon the
demurrer, for the amount of the note and interest, from which
the defendant, Goodrich, took this appeal.
The assignment of errors questions the ruling of the court
below in sustaining the demurrers to the special pleas, respec-
tively.
Mr. Samuel Strawder, for the appellant.
Mr. A. Webster, for the appellees.
Mr. Justice Breese. delivered the opinion of the Court :
It is a rule in pleading, universally recognized, that a plea
must answer all that it professes to answer. If it purports
to answer the whole declaration, and answers but a part, it is
obnoxious to a demurrer. That is the case with all the special
pleas in this record. The action was assumpsit, with. a. special
496 Goodrich v. Reynolds, Wilder & Co. [April T.
Opinion of the Court.
count on a promissory note, and the common counts. The
pleas are to the whole declaration, whilst they answer only
the special count. 1 Ch. Pleading, 555 ; Snyder v. Gaither
et al., 3 Scam. 92.
The fact that the plaintiffs admitted, after the pleas were
filed, that the note was the sole cause of action, cannot
dispense with the rule of correct pleading.
But the pleas are substantially defective in other par-
ticulars.
The first special plea questions the right of the railroad
company to take a promissory note in payment of capital
stock subscribed in it. In the case of Frye v. Tucker et al.,
24 111. 180, which was an action on a note executed to the
Peoria and Oquawka Railroad Company, and assigned by
indorsement of the secretary of the company, this court said
that a railroad company have an inherent authority to take
and negotiate a promissory note in the ordinary course of their
business. By the general railroad law, stock subscriptions
are payable by calls made, periodically, by the company on
the subscribers. Should a subscriber wish to avoid these calls,
by giving a note for the gross amount of the calls in a certain
time, we see no reason why he should not be so indulged. It
is a matter of contract with the company, and they may know
in what manner they can make the note available in the
prosecution of the work as so much money. They cannot,
as a branch of their business, deal in notes and bills of
exchange, but can make such paper subservient to the great
design. It is an indulgence to a subscriber thus to extend
the time of payment to him, of which he should not, however
much other paying subscribers might, complain. The charter
of the Illinois River Railroad Company required each sub-
scriber to pay ten per cent, at the time of his subscription.
In a suit brought on a subscription to its stock, the defendant
set up, as a defense, the fact that the company had not required
the payment of this ten per cent. This court said, the defend-
ants cannot be allowed to take advantage of the indulgence
extended to them when they made their subscriptions, for the
purpose of repudiating them. This indulgence is a most
1863.] Goodrich v. Reynolds, "Wilder & Co. 497
Opinion of the Court.
ungracious defense, which should not be allowed unless it is
strictly required by some inflexible rule of law. Illinois
River R. R. Co. v. Zimmer, 20 111. 657. With much greater
force can these views be urged in this case, where the plaintiff
sues as assignee, claiming the note by assignment, and which
the plea admits was given for the stock subscribed.
The second, third, fourth and fifth special pleas, attack the
organization of the company and call in question its legality.
We have said, in the case of Rice v. The Rock Island and
Alton R. R. Co., 21 111. 95, that a party cannot be permitted
in this collateral way to question the organization of the com-
pany, and this in an action brought directly by the company.
A bona fide assignee should be in as good a position.
The sixth special plea questions the power of the president
of the company to assign the note. In the case of Fvye v.
Tucker et al., before cited, this court held that the assignment
was prima facie the act of the company by their authorized
officer, and if it was not their act, it should have been denied
by affidavit. Mclntire v. Preston, 5 Gilm. 60. There is no
plea verified by affidavit putting this assignment in issue.
The eighth and ninth pleas aver that the note was given
for certain shares of stock in the railroad company, which
were subscribed for at a time long anterior to the execution
of the note, and which was in payment for the stock. The
stock being subscribed, it must be paid for, notwithstanding
any false representations made at the time of the execution of
the note. Besides, the pleas do not allege that those who
made the false representations were authorized by the company
to make them, or that they knew they were false when made.
White v. Watkins, 23 111. 482.
The fraud and circumvention by which the defendant was
induced to give the note, are not stated in the ninth plea, and it
is defective on that account. The plea should state distinctly
in what the fraud and circumvention consisted ; and the same
objection lies to the tenth plea. The eleventh plea avers a
want of consideration for the note. This suit being brought
by an assignee of the note, to avail of this defense, the plea
63— 31stIlj.
498 Golden v. Knox. [April T.
Statement of the case.
should aver that the note was assigned after it became due.
There is no such averment, and consequently the assignee
cannot be affected by it. It is no defense as to him, for the
declaration shows that the note was assign ed before due.
The defense, under the twelfth plea, of nul tiel corporation
was withdrawn, as appears by the record, and also the plea of
the general issue.
The thirteenth plea avers that the directors of the company
never demanded of the defendant the amount of stock he
subscribed. We are not aware of any obligation resting upon
the company to make such demand. It was the defendant's
duty to pay the note, which being done, he could demand
certificates of stock.
The remaining plea sets up usury in this, that the interest
was made payable semi-annually. It has long been settled,
such reservation is not usurious. McGill et al. v. Ware, 4
Scam. 21. The whole interest may be lawfully reserved in
advance. Manhattan Co. v. Osgood, 15 Johns. 162 ; New
York Fire Ins. Co. v. My, 2 Cowen, 678.
As to all the pleas questioning the legality of the organiza-
tion of the company, reference is made to the case of Grand
Trunk Railway Co. v. Cook, 29 111. 237, as decisive of these.
Seeing no error in the record, the judgment must be affirmed,
Judgment affirmed.
Amos Golden
v.
Charles M. Knox.
Appeal from the Circuit Court of the county of Rock
Island ; the Hon. Ira O. Wilkinson, Judge, presiding.
Messrs. Samuel Strawder, and Samuel R. Allen, for the
appellant.
Mr. A. Webster, for the appellee.
1863. ] Baker v. Williams. City of Amboy v. Sleeper. 499
Statement of the case.
Mr. Justice Breese: This case is similar in all respects
to the preceding case of Goodrich v. Reynolds, Wilder <&
Co., and must be decided in the same way. The judgment
is affirmed.
Judgment affirmed.
Rudolphus J. R. Baker
v.
Charles Williams.
Appeal from the Circuit Court of the county of Rock
Island ; the Hon. Ira O. Wilkinson, J udge, presiding.
Messrs, Samuel Strawder, and Samuel R. Allen, for the
appellant.
Mr. A. Webster, for the appellee.
Mr. Justice Breese : This case is similar in all respects
to the two cases preceding, and the judgment is therefore
affirmed.
Judgment affirmed.
City of Amboy
v.
True P, Sleeper.
City op Amboy — its powers. — The City of Amboy has authority, under
its charter, to pass ordinances to punish a party committing an assault and
battery
Writ of Error to the Circuit Court of Lee county ; the
Hon. William W. ITeaton, Judge, presiding.
600 City of Amboy v. Sleeper. [April T
Statement of the case.
This was an action of debt originally instituted by the
City of Amboy, in Lee county, against True P. Sleeper,
before the police magistrate of that city.
The action was founded upon an alleged assault and battery
committed by Sleeper upon the person of Edward Mack, in
violation of an ordinance of said city, passed on the 11th day
of June, 1861, entitled " An ordinance in relation to assaults
and battery, affrays and unlawful assemblings."
The following sections, only, have reference to this case :
"Sec. 1. Be it ordained by the City Council of the City of
Amboy, that all actions of assault, assault and battery, and
affrays, occurring within the city limits of the city of Amboy,
shall be brought under the ordinances of said city, and not
otherwise."
" Sec. 3. An assault and battery is the unlawful beating of
another, and shall subject the offender to a fine of not less
than three, nor more than one hundred dollars."
The trial before the police magistrate resulted in a judg-
ment against Sleeper for the sum of seventy-five dollars and
costs, from which he appealed to the Circuit Court, in which
such proceedings were had, that after a jury were em pan -
neled and sworn, on motion of the defendant, the court
refused to admit in evidence the ordinance mentioned, and
discharging the jury from the further consideration of the
case, dismissed the suit at the plaintiff's costs.
Thereupon the plaintiff sued out this writ of error.
The only question presented, is in reference to the authority
of the city to pass the ordinance under which this prosecution
was had.
Mr. W. E. Ives, for the plaintiff in error, cited section
36, article 5, of the charter of the city of Amboy.
Messrs. E. A. Storks, and John V. Eustace, for the defend
ant in error.
1863.] Holbrook v. Bkenner et aL 501
Syllabus.
Mr. Chief Justice Caton delivered the opinion of the
Court :
The case of Petersburg v. Metzker, 21 111. 205, settles this
case. The authority conferred upon the city to pass this
ordinance is broader even than in that case, and we recognized
the authority in that case for the city to pass ordinances to
punish parties who commit assault and batteries ; and the only
objection to the ordinance was, that it imposed a greater pun-
ishment than is inflicted by the -general laws of the State.
Here the punishment is precisely the same, and we regard
the power of the city to pass the ordinance as unquestion-
able.
The judgment is reversed, and the cause remanded.
Judgment reversed.
Edmund S. Holbrook
v.
Andrew Brenner, and Benjamin S. Prettyman.
1. Evidence in ejectment — of defendant's claim of title. In eject-
ment, where it appears that the defendant has purchased the premises by
deed, and is in possession of the premises, it is prima facie evidence that
he claims under that title.
2. Proof op title by plaintiff in ejectment. And if he and the
plaintiff claim from the same source, it is not necessary for the latter to
trace his title further, in the first instance.
3. When the plaintiff exhibits a title from the same source, better than
that of the defendant, it is sufficient to put him upon his defense.
4. Defendant may show a different or outstanding title. The de-
fendant may, however, show that he claims under a different title, or, he
may show a paramount outstanding title, to defeat a recovery.
5. Evidence — deed from assignee in bankruptcy— pre-requisites to its ad-
missibility. It is not essential to the admissibility in evidence of a deed
executed by an assignee in bankruptcy, that it should be proven the
assignee had complied with the condition in the decree appointing him,
that he should execute a bond.
502 Holbkook v. Brenner et al. [April T.
Statement of the case.
6. Where the deed contains the recitals prescribed in the 15th section
of the bankrupt law of 1841, the deed itself is conclusive evidence, in a
collateral proceeding, that the terms of the decree, and the rules of court,
were complied with by the assignee.
7. It is also evidence that the sale was reported to, and approved by the
court. Also, that proper notices were given of the time, place and terms
of the sale.
8. Sale by assignee in bankruptcy — pre-requisites to its validity.
Indeed, a sale by the assignee is made valid, whether these requirements
have, or not, been observed.
9. Sale by assignee in bankruptcy — not affected by subsequent decree.
A decree in bankruptcy and the appointment of an assignee pass all the
title from the bankrupt to the assignee. And a sale thereafter made by
the assignee will not be at all affected by a subsequent decree relating to
the same premises.
10. Decree — who affected by it. One who is not a party to a proceeding
in bankruptcy, will not be affected by the decree therein.
11. Sale by assignee in bankruptcy — within what time it must be
made. It is not essential to the validity of a sale by an assignee in bank-
ruptcy, that it be made within two years after his appointment.
12. The 10th section of the bankrupt act is only advisory on that subject.
13. Decree in bankruptcy — its requisites to authorize the assignee to
sell. It is not necessary that a decree in bankruptcy should, in terms, direct
the assignee to make sale of the property, in order that he shall have
authority to do so, when there is a rule of the court requiring that to be
done. Such rule is an order of the court as fully as if copied into the decree.
14. But if this were not so, where the deed of the assignee contains the
recitals as required by the 15th section of the bankrupt act, it validates
itself in that regard.
Writ of Error to the Circuit Court of Woodford county ;
the Hon. S. L. Richmond, Judge, presiding.
This was an action of ejectment brought by Edmund S.
Holbrook, the plaintiff in error, against Andrew Brenner, the
tenant in possession ; Benjamin S. Prettyman was permitted
to appear and defend, as his landlord.
The suit was commenced in the Circuit Court of Tazewell
county for the recovery of one hundred and seventy city lots
in the city of Pekin ; and was taken on change of venue to
the Circuit Court of Peoria county, and, finally, removed to
the Circuit Court of Woodford county.
1863.] HOLBKOOK V. BliENNEK et al. 503
Statement of the case.
The plaintiff, to maintain the issue on his part, and for the
purpose of showing that defendants claimed title to the
premises in controversy from the same source of title with
himself, that is, from William C. Bostwick as the assignee
in bankruptcy of James B. Campbell, read in evidence
a deed from said Bostwick to William B. Doolittle, for the
premises.
" Whereas, by a decree of the Honorable District Court
of the United States of America, for the District of Illinois,
sitting as a Court of Bankruptcy, James B. Campbell, of the
county of Jo Daviess in said district, was decreed a bankrupt,
which said decree bears date the third day of October, A. D.
1842, and is in the words and figures following, to wit :
" DISTRICT COURT OF THE UNITED STATES, }
For the District of Illinois. ) In the matter of the
Petition of James B. Campbell to be declared a Bankrupt, and to be dis-
charged from his debts.
" On hearing the petition of the said James B. Campbell,
filed in this court 22nd August, A. D. 1842, praying to be
declared a bankrupt, in pursuance of the act of Congress
entitled, ' An act to establish a uniform system of bankruptcy
throughout the United States,' and it appearing satisfactorily
to the court, that notice has been published in pursuance of
the previous order of this court, and no sufficient cause being
shown to the contrary : It is therefore ordered, adjudged and
decreed, that the said James B. Campbell be deemed a bank-
rupt within the purview of said act. And it is further ordered
and adjudged, that William C. Bostwick, of the county of Jo
Daviess, be, and hereby is, appointed assignee of said bank-
rupt, upon his entering into, before a commissioner, and filing
with the clerk of the court, a penal bond in the sum of
dollars, to the United States, with two or more sureties,
to be approved by the commissioner of the county wherein
the bankrupt resides, conditioned for the due and faithful
discharge of all his duties as such assignee, and his compli-
ance with the orders and directions of the court. And
whereas I, the said William C. Bostwick, appointed assignee
of the said James B. Campbell, in and by virtue of the decree
504 Holbeook v, Brenner et al>. [April T.
Statement of the case.
aforesaid, have complied with the provisions of said decree,
and have filed with the clerk of said court my sufficient bond
in the penal sum of five hundred dollars, with two aufficient
securities approved by the proper commissioner, and have
complied with all other the regulations and directions of said
decree, and with all the rules in bankruptcy of said honorable
court, so far as the same apply to or are binding and incum-
bent upon me, have, as such assignee, sold the property here-
inafter described, at public auction, at the court-house in
Galena, in the county of Jo Daviess, having first duly adver-
tised the same according to law, and said sale being made in
pursuance of a decree of said District Court, dated 15th May,
1851, and which said decree is in the words and figures
following, to wit :
"'In the matter of the Petition of William ) In the United States Dis
C. Bostwick, Assignee in Bankruptcy of V trict Court within the Dis
James B. Campbell, declared a bankrupt. ) trict and State of Illinois.
•* * Petition for sale of real estate of Bankrupt.
" ' And now, on this day, this cause coming on to be heard
on the petition of William C. Bostwick, assignee of James
B. Campbell, a bankrupt, and upon the exhibits and proofs,
and it appearing to the court that the said James B. Campbell
has an interest or claim in and to the following real estate
situate in the county of Tazewell and State of Illinois, to w.it : '
[Here follows a description of the tracts of land and lots of
ground in this deed hereinafter mentioned and described,
including the whole and every tract of land and lot of ground
hereinafter described,] ' which said lands were not contained
in the schedule filed in said court by said bankrupt. It is
therefore ordered, adjudged and decreed by said court that
the said assignee, William C. Bostwick, proceed to sell all the
estate, right, title and interest, in him vested as such assignee,
in and to the lands above specified, in such manner, upon
such terms and at such times as is specified in the rules of this
court heretofore made and still in force, in regard to the sale
of real estate of bankrupts. It is further ordered, that said
assignee make report of his doings herein to this court, at the
earliest opportunity.' "
1863.] Holbrook v. Brenner et al. 505
Statement of the case.
"At which sale William B.'Doolittle, of Tazewell county,
State of Illinois, hereinafter named, became the purchaser of
said lots and lands."
[Here follows a description of the lots, the same as in plain-
tiff's declaration — with other lots and lands.]
"Now, therefore, know all men by these presents, that I,
William C. Bostwick, as assignee of the said James B. Camp-
bell, a bankrupt, as aforesaid, in consideration of the sum of
fifty dollars to me in hand paid by the said William B.
Doolittle, the receipt whereof is hereby acknowledged, being
the aggregate of said several bids as aforementioned, do, as
such assignee, sell and convey, unto the said William B.
Doolittle, and to his heirs and assigns, all the right, title and
interest in me vested, as such assignee, in and to the lots,
lands and real estate hereinbefore specified, designated and
described, at the date of said sale, to wit, this 17th day of
June, 1851. In witness whereof, I, the said William C.
Bostwick, assignee as aforesaid, hereunto set my hand and
seal, the said 17th day of June, A. D. 1851.
WM. C. BOSTWICK, [seal.]
Assignee in Bankruptcy of James B. Campbell."
The plaintiff, for the same purpose of showing the defend-
ants claimed title from the said common source, introduced
in evidence a deed from John A. Jones, as master in chancery,
to the defendant, Prettyman, for the same premises.
This deed was executed in pursuance of a decree rendered
in the Circuit Court of Tazewell county at the October term,
1855, in a suit in chancery instituted by Amos L. Merriman
against the heirs of Halsey O. Merriman and the heirs of the
said Doolittle, for the purpose of subjecting the premises to
the payment of the debts of Halsey O. Merriman and Doo-
little, it appearing that they purchased the lots in partnership.
A sale being ordered, Prettyman became the purchaser.
The plaintiff then offered to read in evidence a deed from
said Bostwick, as assignee in bankruptcy of Campbell, to
himself, for the same premises, showing a sale by the assignee
to the plaintiff prior to that made to Doolittle, and prior to
the rendition of the decree under which Doolittle claimed.
This deed is as follows:
64— 31st III.
506 Holbrook v. Brenner et at. [April T.
Statement of the case.
First reciting the decree in bankruptcy of the 3rd of Octo-
ber, 1842, and the appointment of the assignee, as in the
deed to Doolittle, proceeds :
" And whereas I, the said William C. Bostwick, appointed
assignee of the said James B. Campbell, a bankrupt, in and
by virtue of the decree aforesaid, have complied with the
provisions of said decree, and have filed with the clerk of said
court my sufficient bond, in the penal sum of five hundred
dollars, with two sufficient securities approved by the proper
commissioner, and have complied with all other the requisi-
tions and directions of said decree, and with all the rules in
bankruptcy of said honorable court, so far as the same apply
to, or are binding and incumbent upon me, and have, as such
assignee, sold the property hereinafter described, at public
auction, at the court-house in said county of Jo Daviess, having
first duly advertised the same according to law, and the said
pieces and parcels of land and lots having been offered, and
sold separately, and having been sold and struck off at the
prices following, and said property, lands and lots being
described and designated as follows, to wit : " [Here follows a
description of the property as in the declaration.] " And the
said Edmund S. Holbrook being the highest and best bidder
for each and every of said tracts of land and lots of ground,
he became the purchaser thereof, at the said sale, and the
same were severally, and each and every of them, struck off
to him.
" Now therefore, know all men by these presents, that I, the
said William C. Bostwick, as assignee of the said James
B. Campbell, a bankrupt as aforesaid, in consideration of the
sum of thirty dollars to me in hand paid by the said Edmund
S Holbrook, the receipt w^hereof is hereby acknowledged, do,
as such assignee, sell and convey to Edmund S. Holbrook and
his heirs and assigns, the said tracts of land, and lots of
ground, as the same are hereinbefore designated and described.
To have and to hold the said tracts of land and lots of ground
unto the said Edmund S. Holbrook, his heirs and assigns
forever.
" In witness whereof, I, the said William C. Bostwick, in
1863.] Holbrook v. Bbenner et al. 507
Statement of the case.
my capacity of assignee of said James B. Campbell, a bank-
rupt as aforesaid, have hereunto set my hand and seal this
18th day of October, A. D. 1850.
WM. C. BOSTWICK. [seal.]
Assignee in Bankruptcy of James B. Campbell.*'
Also, in support of said deed, the plaintiff offered in
evidence a certified copy of the said decree of 3rd October,
1842.
To the reading of which deed in evidence, defendants by
their counsel objected, for the following reasons :
1. Because the deed does not recite the decree correctly.
2. Because the plaintiff is estopped by the decree of 1851,
which authorizes the second sale, and therefore avoids the
sale and deed to plaintiff.
3. Because the plaintiff does not produce the orders and
rules of the court concerning the sale of bankrupt's effects,
and does not show a compliance therewith.
4. For other reasons, not disputing the execution and
acknowledgment.
5. The deed does not show to whom the bond of $500
was executed.
And in support of the second objection, defendants offered
a certified copy of record of proceedings in the bankrupt
court, to wit, the petition of William B. Doolittle, and Wil-
liam C. Bostwick, assignee, for the sale of certain property,
the report of sale by Bostwick, and the orders of court thereon,
in words and figures following, to wit :
u STATE OF ILLINOIS,)
COUNTY OF TAZEWELL. ) AFFIDAVIT.
" William B. Doolittle of said county and State being duly
sworn, deposes and says that he has examined the records of
said county diligently, and that as appears from said records,
James B. Campbell, late a bankrupt, at the time of obtaining
his discharge and decree of bankruptcy, to wit, on the third day
of October, A. D. 1842, had and still has an interest and claim
in and to the following described real estate, situated in the
county of Tazewell and State of Illinois, to wit :" [Here
follows a description of lands as in plaintiff's declaration, with
other property. Sworn to, May 9, 1851.]
60S Holbkook v. Brenner et al. [April T
Statement of the case.
" Petition.
" To the Honorable Thomas Brummondy Judge of the Circuit Court of the
United States, within and for the District of Illinois :
" Your petitioner, William C. Bostwick, of the county of
Jo Daviess in the State of Illinois, unto your Honor respect-
fully represents : that he is assignee in bankruptcy of the
estate of James B. Campbell, who was declared a bankrupt,
by a decree and order of said court at Springfield, dated Feb-
ruary 8th, 1843 ; and refers to the records of said court for
proof thereof.
" Petitioner further states that, as petitioner has been
credibly informed and verily believes, the said James B.
Campbell, at the time of his said discharge in bankruptcy,
was the legal owner of, or had some interest in and to the
following real estate, situate," etc. [Here follows descrip-
tion as in affidavit, a statement that these lands were not
scheduled, and a considerable portion of Campbell's debts
unpaid.]
" Petitioner therefore prays, that an order may be granted
by said court for the sale of said real estate, under and by
virtue of his said capacity of assignee in bankruptcy of said
James B. Campbell as aforesaid, in such manner and at such-
time as such court shall direct. And as in duty bound your
petitioner will ever pray.
WILLIAM C. BOSTWICK."
Then follows the decree of the 15th of May, 1851, directing
a sale of the premises, as recited in the deed to Doolittle, and
a report to court by Bostwick, assignee, of a sale to Doolittle,
describing the property as before, and deed executed to Doo-
little, filed February 1st, 1853. Decree of court, approving
of the sale.
To the reading of which, plaintiff objected, for irrelevancy
and incompetency.
The court permitted the same to be read ; to which decision
of the court the plaintiff then and there excepted.
The court decided that said deed and certified copy of
decree in bankruptcy offered by the plaintiff could not be
read in evidence, for the reason, that it did not appear that
said Bostwick was the assignee in bankruptcy of James B.
1863.J Holbbook v. Bkenner et al. 509
Statement of the case.
Campbell; to which decision of the court plaintiff then and
there excepted.
Plaintiff then proposing to offer again his deed in evidence,
offered in evidence a copy of the 51st rule in bankruptcy, in
words and figures following, to wit :
" It shall be the duty of the assignee of the bankrupt to
make sale of all the right, title and interest of the bankrupt,
whether equitable or legal, in and to any real estate, where-
soever situated, with all due diligence, having regard to the
interest of the creditors (unless some one of said creditors
shall, previous to the time appointed for such sale, file with
the assignee his written dissent thereto, when it shall be the
duty of such assignee to refer the matter to the court,) and
that the sale of said real estate, or any interest therein, be
made either for cash or upon a credit not exceeding one and one
and a half years, as the assignee shall deem most advisable, and
upon the premises to be sold, or at some public sale, as said
assignee shall deem best for the interest of said estate, at least
twenty days notice of the time, place and terms of sale being
first given by affixing up at least three notices, and also by
publication in some newspaper nearest the premises, when in
the opinion of the assignee the property is sufficiently valuable
to justify the expense of such publication."
To which defendants objected, on the ground of irrelevancy.
The court decided that it might be read, and defendants
excepted.
The plaintiff then, for the purpose of showing further that
William C. Bostwick was the assignee in bankruptcy of James
B. Campbell, offered to read again said certified copy of pro-
ceedings in bankruptcy concerning said sale to Doolittle.
The defendants objected on the ground that the same was
not then before the court for any purpose, and could not be
used by plaintiff unless offered by him.
The court sustained the objection ; to which decision plaintiff
then and there excepted.
Plaintiff then offered to read the same in evidence. The
court permitted it to be read.
Plaintiff then offered to read the deed of Bostwick to him-
510 Holbrook v. Brenner et al. [April T.
Statement of the case.
self again by permission of court, and also said decree in
bankruptcy to support it ; to the reading of which defendants
objected, and suggested these further reasons :
Because it is not shown that the lands were advertised.
Said deed is incompetent evidence, and is otherwise objec-
tionable.
The court decided that said deed could not be read in evi-
dence, and also excluded said certified copy of proceedings in
bankruptcy in regard to the sale to Doolittle, and said copy
of decree in bankruptcy ; to which decision of said court,
plain tiff then and there excepted.
This was all the evidence in the case.
The court instructed the jury to find the defendants not
guilty.
Yerdict for defendants — motion for new trial overruled ;
plaintiff excepted. Judgmeut for costs against plaintiff, who
thereupon sued out this writ of error, and alleges —
1. The court erred in refusing to permit the deed of Bost-
wick to plaintiff, as first offered, to be read in evidence.
2. The court erred in permitting the certified copy of pro-
ceeding*, in the District Court, to be read in evidence by
defendants.
3. The court erred in not permitting the certified copy of
decree in bankruptcy in the matter of James B. Campbell, to
be read in evidence.
4. The court erred in not permitting the plaintiff to use
the certified copy of proceedings in the bankrupt court, read
in evidence by defendants.
5. The court erred in not permitting said plaintiff's
deed, and said certified copy of decree in bankruptcy, and said
copy of proceedings in the bankrupt court, as they were last
offered by plaintiff, to be read in evidence.
6. The court erred in not awarding to plaintiff a new trial.
7. The court erred in giving judgment against the plaintiff,
Mr. E. S. Holbrook pro se, with whom were Messrs. E. 8
Leland, and H. B. Hopkins.
Messrs. Wead & Powell, for the defendants in error.
1863.] Holbrook v. Brenner et al. 511
Opinion of the Court.
Mr. Justice Walker delivered the opinion of the Court :
Plaintiff in error, on the trial in the court below, read in
evidence a deed from Bostwick, as assignee of Campbell, a
bankrupt, to Doolittle, dated the 17th of June, 1853, for
the premises in controversy. Next, a deed from Jones, master
in chancery, which was made under a decree rendered in the
Tazewell Circuit Court, in favor of A. L. Merriman, and
against the heirs of Doolittle and H. O. Merriman, conveying
the premises to defendant Prettyman. He then offered to
read a deed from Bostwick, as assignee of Campbell, to him-
self, dated October 18th, 1850, for the same premises. And
in connection with the last deed, he offered a certified copy of
the decree, declaring Campbell a bankrupt, and appointing
Bostwick his assignee. Also, the fifty-first rule adopted by
the court in bankruptcy. The deed, the copy of the order,
and rule, were rejected, and not permitted to be read to the
jury, and a verdict was returned in favor of the defendant,
upon which a judgment was rendered.
The first objection to the deed as evidence, was, that it was
not, it is insisted, connected with a source of paramount title.
On the contrary, it is urged that the evidence showed that
the parties claimed title from Bostwick as a common source.
In the action of ejectment it is held, that where both parties
claim under the same right, the plaintiff is not required to
trace his title back beyond the common source. Ferguson v.
Miles, 3 Gilm. 365; McConnel v. Johnson, 2 Scam. 528;
McClure v. Engelhardt, 17 111. 50.
When it is found that the defendant has purchased by deed,
and is in possession of the premises, it is prima facie evidence
that he claims under that title. And if he and plaintiff claim
from the same source, it is not necessary for the latter to trace
his title further in the first instance. When he exhibits a
title from the same source, better than that of the defendant,
it is sufficient to put him upon his defense. The defendant
may, however, show that he claims under a different title, or,
lie may show a paramount, outstanding title, to defeat a recov-
512 Holbkook v. Brenner et al. [April T.
Opinion of the Court.
ery. In this case, it was sufficiently shown that both parties
claimed from a common source, to authorize the reading of
the deed in evidence, and the court erred in excluding it
from the jury.
It is, however, urged that the deed was inadmissible, be-
cause it was not shown that Bostwick entered into bond as
assignee. That by the terms of the decree, he was only to
become assignee, upon executing such a bond, in a penalty of
a number of dollars not specified. By the fifteenth section
of the bankrupt act,* it is declared, that a copy of the decree
and appointment of the assignee, recited in the deed for
lands of the bankrupt, sold and conveyed by the assignee,
together with a certified copy of the order, shall be full and
complete evidence of the bankruptcy and assignment, to
validate the deed. " And all deeds containing such recitals,
and supported by such proof, shall be as effectual to pass the
title of the bankrupt, of, in and to the lands therein men-
tioned and described, to the purchaser, as fully to all intents
and purposes as if made by such bankrupt himself immedi-
ately before such order."
This provision was manifestly designed to dispense with all
proof that the* assignee had complied with the terms of the
decree or the rules of the court, when the deed should come
in question in a collateral proceeding. If he failed to act in
obedience to the decree, or acted in violation of the rules ot
court, and the assignee or creditors made no exceptions to have
the sale set aside, the deed would be conclusive, to pass the
title of the bankrupt. This enactment has dispensed with
proof that a bond was given, but makes the deed, in a collat-
eral proceeding, conclusive evidence of that fact. It is also
evidence that the sale was reported to, and approved by, the
court. Also, that proper notices were given of the time, place
and terms of the sale. Or, perhaps, more accurately stated,
the sale is made valid whether these requirements have, or
not, been observed. These views are in accordance with the
decisions in the cases of HoTbrodk v. Correy, 25 111. 543,
and Joy v. Bedell, 25 111. 537.
* Aot of Congress of August 19, 1841. 5 U. S. Stat, at Large, p. 448.
1863.] Holbrook v. Brenner et al. 513
Opinion of the Court.
The cases referred to by defendant in error, which hold
that the assignee has no power to maintain an action to
recover the assets of the bankrupt, until he has given bond,
do not militate against the validity of this deed. The deed is
made valid and effectual to pass the title by express enactment,
whilst there is no authority conferred, to bring suit before
bond is executed. The statute has not provided that he may
sue, upon merely producing a copy of the decree appointing
him assignee. The questions are distinct, depending upon
different provisions of the law, and hence, different rules may
prevail.
Inasmuch as the decree in bankruptcy, and the appointment
of the assignee, divested the bankrupt's title out of him, and
vested it in the assignee, there was no title in the bankrupt
when the second decree was rendered. The former decree
had left no interest in the bankrupt to this property, which
could be affected by the latter decree. And as the sale of the
premises by the assignee to plaintiff in error, transferred the
title held by the assignee, to the purchaser, the subsequent
sale to Doolittle could pass no title. But even if the latter
decree of the court in bankruptcy had any binding effect
upon any person, or upon anything, it was not on plaintiff in
error, as he was not a party to that proceeding. Even if it
purported to set aside the sale to plaintiff in error, it could
have no such effect, unless he had been in court as a party to
the proceeding. He is not concluded by that decree, in that
or any other tribunal.
It is again urged, that the assignee had no power to sell
■he premises, after the expiration of two years from the time
it his appointment. The eighth section of the bankrupt act
imits the period within which the assignee may sue to
recover the assets of the bankrupt, to two years after the
bankruptcy, or the cause of suit has accrued. The tenth
section provides, that " all proceedings in bankruptcy in each
case, shall, if practicable, be finally adjusted, settled and
brought to a close, by the court, within two years after the
decree declaring the bankruptcy." The first of these pro-
visions, in terms, relates to the bringing of suits to recover
assets. It in nowise relates to the sale of property. There
65— 31 st III.
514 Holbrook v. Brenner et al, [April T.
Opinion of the Court.
does not seem to be the remotest connection between main-
taining a suit and selling property. But it is contended that
as the assignee could not recover these premises by an action,
he could not transfer the right to maintain an action. The
title was vested in him, and he, by the requirements of the
law, was bound to sell it, and no time for its sale is prescribed.
And where we find that the law has vested him with the title
for a particular purpose, and has limited no period within
which he shall carry out that purpose, we cannot infer that it
shall be defeated, because the law has required the perform-
ance of other acts within a limited time.
The property is vested in him for the benefit of creditors,
and it cannot be that it was designed, that if from any cause it
was not sold, they, without fault or neglect on their part, should
be deprived of their beneficial interest in the trust fund. It
will hardly be contended that where real estate is vested in an
assignee, reduced to his possession, but from any cause not
sold until the expiration of two years, and after its sale an
adverse possession was acquired, the purchaser could not
maintain ejectment. And the doctrine contended for, would
lead to this conclusion. The title was manifestly transferred
to the assignee for the purpose of paying creditors, and the
assignee was required to sell it for that purpose, and the doc-
trine contended for would be well calculated to defeat the
design of the law.
The provisions of the tenth section are not imperative, but
are advisory. It provides that the entire business of the bank-
rupt, if practicable, shall be closed up within two years. But
it imposes no penalties and divests no titles to property if it is
not done. The very fact that it only requires the business to
be closed, if practicable, implies that if it is not done, the
assignee shall still proceed to close the business. And it
would seem inevitably to follow, that if he had the title to
property not sold, he might dispose of, and convey it, and
thereby pass the title. When the law cast upon him the title,
it made no provision for it to be divested, except by sale or
the appointment of a successor. And the law could not
have designed to offer him the property as a premium for
1863.J Sohofield v, Settley et at. 515
Syllabus.
neglecting his duty in making a sale, and if he cannot sell
it after that period, it would become his, absolutely and
unconditionally. Such could not have been the design of the
lawmakers. We are therefore of the opinion that the
assignee had the power to sell and convey the premises after
the expiration of the two years, and that the purchaser
acquired all the rights of the bankrupt.
It was further insisted that the sale could only be made
under the order of the court, and that no order was shown.
It appears that the fifty-first rule of the court of bankruptcy
requires the assignee to make sale, and to give notice of the
time and place where it will be made. This rule of court
was, for all purposes, an order of court, as fully as if it had
been copied at large into the decree. When the assignee
sold under this rale, be virtually sold under the order and
direction of the court. But if this were not true, the pro-
vision of the fifteenth section of the act dispenses with the
proof, when it makes the deed and copy of the order appoint-
ing the assignee, full and complete evidence to validate the
deed.
We are, for these reasons, of the opinion that the court
below erred in rejecting the deeds offered by plaintiff in error
as evidence, and the judgment is reversed, and the cause
remanded.
Judgment reversed.
Hiram Schofield
v.
Henry Settley, and Amos Heming.
1. Demurrer to plea — when it will not be carried back to the declara-
tion. Where a plea of the general issue is put in to the whole declaration,
a demurrer to a special plea cannot be carried back to the declaration.
2. Arrest op judgment — error — defective declaration. If the
declaration be so defective that it will not sustain a judgment, that may be
taken advantage of, on a motion in arrest of judgment, or on error.
516 Schofield v. Settley et al. [April T.
Statement of the case.
3. Bill of exceptions — when necessary. A party cannot question, on
error, the ruling of the court below in refusing to require the plaintiff to
file a more definite bill of particulars, unless that already filed be preserved
in the record by bill of exceptions.
4. Withdrawing a juror — its effect. The practical effect of with-
drawing a juror, in our practice, is not that it shall operate as a non-suit,
but merely to carry the cause over to another term.
5. Same — discretionary with the court. Granting leave to withdraw a
juror, rests in the discretion of the court, and such terms may be imposed
as may be deemed just. Unless the discretion is greatly abused, its exer-
cise cannot, in ordinary cases, be assigned as error.
C. Same — as to the costs. In this case the terms imposed upon the
party to whom the leave was given, were the payment of the costs of the
term ; and while this court would have been better satisfied if all the costs
had been charged to the party, they would not reverse the judgment
because that was not done.
Writ of Error to the Circuit Court of Stephenson county ;
the Hon. Benjamin ft. Sheldon, Judge, presiding.
Henry Settley and Amos Heming instituted an action of
debt, in the court below, against Hiram Schofield, upon an
agreement under seal, by which the plaintiffs below agreed to
build a house for the defendant, according to certain plans
and specifications referred to in the contract, for which the
defendant was to pay the plaintiffs a certain specified sum of
money.
The breach alleged the non-payment of the money. Before
pleading to the action, the defendant moved the court for a
rule upon the plaintiffs to file a more specific bill as to the
first three items of his account ; which motion was overruled
and the defendant excepted. The defendant then pleaded the
general issue and several special pleas ; to some of the latter
the plaintiffs interposed a demurrer, which was sustained.
Issues being formed upon the remaining pleas, a jury was
empanneled, after which, upon motion of the plaintiffs, leave
was given to withdraw a juror. A juror being withdrawn,
and the jury discharged, the court ordered that the cause be
continued, and that the plaintiffs pay the costs of the term
1863.] Schofield v. Settley et al. 517
Opinion of the Court.
Subsequently, such proceedings were had, that the plaintiffs
recovered a judgment against the defendant, who thereupon
sued out this writ of error.
The plaintiff in error now insists, that the demurrer to the
special pleas, which was sustained by the court below, should
have been carried back to the declaration, as that was obnox-
ious to a demurrer ; second, that the court erred in not
requiring the plaintiffs below to file a more particular account
containing items and dates; and third, in allowing a juror to
be withdrawn without rendering a judgment against the
plaintiffs for previous costs.
Messrs. Meacham & Goodhue, and Leland & Blanchabd,
for the plaintiff in error.
Mr. F. C. Ingalls, for the defendants in error.
Mr. Justice Bkeese delivered the opinion of the Court :
No abstract lias been furnished, of the record in this cause.
Briefs by both parties have been submitted, and the case will
be disposed of on them, as they may make the case to appear.
The action was debt, on an agreement, under seal, to build
a house according to certain plans and specifications referred
to in the contract. The breach is, non-payment according to
the contract. The defendant pleaded the general issue and
several special pleas, to some of which, the fifth and sixth,
demurrers were interposed.
It is claimed by the defendant, that the pleas were as good
as the declaration ; and as that was bad, in not setting out
what the plans and specifications were, the demurrer should
have been sustained to the declaration. ~No motion was made
to carry the demurrer back upon the declaration ; and if it
had been, it would not have been allowed, against the authority
of the cases of Wear v. The Jacksonville and Savannah R. 11.
Go., 24 111. 593, and Wilson et ®L v. Myrick, 26 111. 35, by
which the doctrine is established for this court, that when a
plea of the general issue is put in to the whole declaration, a
518 Schofield v. Settley et al. [April T.
Opinion of the Court.
demurrer to a plea cannot be carried back to the declaration,
upon the well-settled ground, that you cannot plead and
demur to the same pleading at the same time. If the decla-
ration be so defective that it will not sustain a judgment, that
may be taken advantage of, on a motion in arrest of judgment,
or on error. The same rule is found in Brawner v. Lomax et
al., 23 111. 496.
Another objection is taken by the plaintiff in error, that the
court ought to have ruled the plaintiff in the court below to
tile a more definite bill of particulars. In answer to this, it is
to be said, the record furnishes no bill of particulars which
we can notice. There is no bill of exceptions preserving it
on the record. There should have been, if the defendant
intended to raise a question upon it here. Franey v. True,
26 111. 184.
The remaining objection is, that after the jury was empan-
neled, the court, at the instance of the plaintiff, gave leave
to withdraw a juror, without non-suiting the plaintiff. The
practical effect of withdrawing a juror, in our practice, is not
that it shall operate as a non-suit, but merely to carry the cause
over to another term.
This practice has crept in gradually, ameliorating the more
rigid mode of proceeding by the rules of the common law. It
is considered necessary for the due administration of justice,
that courts should possess this power, to be used in their
discretion. Miller v. Metzger, 16 111. 393; The People, etc.,
v. The Judges of the Court of Common Pleas of the City of
New York, 8 Cowen, 127; People v. Ellis et al., 15 Wend.
371.
Resting in the discretion of the court, such terms may be
imposed as may be deemed just; and unless the discretion is
greatly abused, its exercise cannot, in ordinary cases, be
assigned as error. Heslefv. Peters, 3 Scam. 45. We would
have been better satisfied with the exercise of this discretion
in this case, if all the costs had been charged against the
plaintiff. As it is, we cannot reverse because they were not.
The judgment is affirmed.
Judgment affirmed.
1863.] Tinkham & Co. v. Heywobth. 519
Statement of the case.
E. L Tikkham & Co.
V.
James O. Heywobth.
1. Action on the case — bankers as collectors. An action on the case
will not lie against a banker for failing to pay over money collected by him
in that capacity, for another.
2. When the collection is made, the banker may credit the customer with
the amount, and he then holds it the same as an ordinary deposit. And
this whether the customer keeps an account with the bank, or not, as
depositor. Thus the relation of debtor and creditor is created, and the form
of action to recover the money, must conform to that relation.
3. Attorneys — a different rule applies. But if an attorney should fail
to pay over money collected, an action on the case would lie against him to
recover it.
4. Money collected by an attorney never becomes his, nor has he any
right to use it, but should pay it over immediately, without demand.
Appeal from the Superior Court of Chicago.
E. I. Tinkham & Co. were bankers in the city of Chicago,
and in the usual course of their business as such, collected
notes, bills, drafts, etc., for their customers. Hey worth, the
appellee, who was doing business in the same city as a mer-
chant, under the name of J. O. Hey worth & Co., was a
customer of these bankers, and kept a deposit account with
them, drawing his money out as occasion required. While
this relation existed between the parties, Heyworth placed
in the hands of the bankers a demand for $103.10 against one
Tewksbury, for collection.
The bankers collected the amount from Tewksbury, and
placed it to the credit of Heyworth, under his firm name of
J. O. Heyworth & Co.
The bank deposit book of Tinkham & Co. showed an
account between the parties, which was balanced January 11,
1861, and there was entered as the last item, "March 13,
1861, Dr. to coll. G. D. Tewksbury, 103.10."
On the 11th February, 1862, Heyworth made demand of
520 Tinkham & Co. v. Heywokth. [April. T
Briefs of Counsel.
the amount so collected for him by Tinkham & Co., and they
refused to pay it over.
It was the general and universal custom in Chicago for
bankers to pass all collections for customers to their credit,
like any other deposit, and this was so in the case of a single
collection for a party not previously a customer or depositor.
On this state of facts, Heyworth, on the 20th of February,
1862, commenced an action of " trespass on the case" in the
court below, against Tinkham & Co., to recover the amount
collected by them upon the demand which he had placed in
their hands against Tewksbury. Such proceedings were had
in that suit, that the plaintiff recovered a judgment against
the defendants, from which they took this appeal.
The assignment of errors presents the question, whether an
action on the case will lie against bankers who fail to pay
over money which they have collected for others.
Messrs. Fuller & Ham, for the appellants.
Where the relation of debtor and creditor, merely, exists
an action on the case cannot be maintained, since the cause of
action is the breach of the contract simply, and the promise
is the gist of the action.
Where money is deposited in a bank in the ordinary course
of business, the relation of debtor and creditor is created.
Edwards on Bailments, 66 ; Marine Bank v. Chandler, 27
111. 525.
The bank is to restore not the same money, but an equiva-
lent sum. Story on Bailments, sec. 88.
The money, checks or bills which are the subject of the
deposit, become the property of the bank, and the depositor
becomes a creditor. Chandler's Case, 27 111. 525.
And there is no difference between a collection by the bank
passed to the credit of the customer, and any other deposit.
Bank v. Chandler, 27 111. 525.
Therefore held that if a bank receives notes for collection,
the probable profit to arise from the money remaining after
collection made, is consideration enough to render the bank
1863.] Tinkham & Co. v. Heywortb. 521
Briefs of Counsel.
liable for want of due and legal diligence and care. Parsons'
Merc. Law, 144, and cases cited ; Smedes v. Bank of JJtica,
20 Johns. 372.
The custom of banks to treat collections as no different from
other deposits, was fully established by the evidence, and
must be acknowledged and enforced. Munn v. Burch, 25
111. 35.
The custom was also proved to be the same in the case of
a single collection for a party not formerly or otherwise, a
customer.
The undertaking of the bank in making the collection, is
fully discharged when the money reaches its vaults. It then
stands precisely as if the money had been paid over, and paid
back as a deposit.
The counsel also cited Russell v. Hanky, 6 T. E-. 12 ; Ms
parte Parsons, Ambl. 219 ; 6 New Hamp. 540 ; 1 Smith's
Leading Cases, 338, top p. (5th Am. Ed.)
Messrs. Hervey, Anthony & Galt, for the appellee.
When the appellants received the note for collection, it was
their duty to collect it, and pay over the proceeds to appellee
on demand. Their duty was not discharged by collecting the
note, simply ; but it was their duty to pay over the proceeds
of it to the appellee or his authorized agent, on demand ; and
for a breach of this duty an action on the case will lie.
In 1 Hilliard on Torts, p. 28, sec. 22, this doctrine is laid
down : " Where there is an employment — which employment
itself creates a duty — an action on the case will lie for a
breach of that duty." See also, Robinson v. Threadgill, 13
Ired. 39 ; Church et al. v. Mumford, 11 Johns. 479.
In 1 Chitty Plead., p. 135, 136, the same doctrine is laid
down \ " An action on the case lies against attorneys or other
agents, for neglect or other breach of duty or misfeasance in
the conduct of a cause, or other business, etc., though it has
been more usual to declare against them in assumpsit. And
though assumpsit is the usual remedy for neglect or breach of
66 — 31st III.
522 Tinkham & Co. v. Heyworth. [April T.
Opinion of the Court.
duty against bailees, whose liability is founded on the common
law, as well as on the contract, yet it is clear that they are
also liable, in case, for an injury resulting from their neglect
or breach of duty in the course of their employ. And it
seems that, although there be an express contract, still, if a
common law duty result from the facts, the party may be sued
in tort for any neglect or misfeasance in the execution of the
contract.
The case of Clayburgh v. The City of Chicago, 25 111. 535,
and the cases there cited, show that the plaintiff, in cases like
the one at bar, has a choice of actions ; and that trespass on
the case will lie for a breach of duty.
Mr. Chief Justice Caton delivered the opinion of the
Court :
Were this action against an attorney, for not paying over
money collected, we should not hesitate to hold that case
would lie. We think it is different in the case of a bank.
Different duties and different rights arise in the two cases.
The bank receives no fee for its services, but only the use of
the money until it shall be called for by the creditor, while
the attorney is entitled to a direct reward, and has no right to
use the money at all, but must pay it over to his client imme-
diately, without demand. Money thus collected never
becomes the attorney's money ; he has no right to make him-
self the debtor of the client by crediting him with the
amount, while the bank may place the money in its vaults as
its own, and credit the customer with the amount, and thereby
become the debtor of the customer, the same as in case of an
ordinary depositor, and this, whether the customer keeps an
ordinary account with the bank or not. Such is the universal
custom with banks, and if we may not take notice of this
custom, it was abundantly proved on this trial. When the
money is thus credited by the bank, it assumes every respon-
sibility for its safety, while this is not the case with an
attorney. In many respects, the undertaking is very different
in the two cases
1S63.] Davidson v. Johnson. 523
Statement of the case.
When this money was collected and placed to the credit of
the plaintiff, the only relation between the parties was that of
debtor and creditor, and the form of the action should have
conformed to that relation. We think an action as for a tort
would not lie.
The judgment must be reversed, and the cause remanded.
Judgment reversed.
Frederick Davidson
v.
Oakley Johnson.
VARIANCE — allegations and proofs. An allegation that a party agreed
to deliver "one hundred and ten hogs," or "one hundred and more hogs,"
is not sustained by proof that the number to be delivered was one hundred.
Appeal from the Circuit Court of Warren county ; the
Hon. Charles B. Lawrence, Judge, presiding.
Oakley Johnson instituted an action of assumpsit in the
court below, against Frederick Davidson, to recover for the
non-delivery of a certain number of hogs, according to con-
tract.
The second count alleges that defendant, on the 11th day
of February, 1858, sold the plaintiff a number of live hogs,
viz., one hundred, the same that were then following defend-
ant's feeding cattle at John B. Cox's, for $3.75 per hundred
weight gross, and to average two hundred weight gross, to be
delivered to plaintiff at Ellison, in Warren county, on the
16th and 17th days of February, 1858, to be weighed by
Samuel Johnson, at his store in Ellison; and that plaintiff was
to deliver to defendant at Ellison on the 16th and 17th days
of February, 1858, to be weighed by Samuel Johnson, from
one hundred to one hundred and ten stock hogs, which were
to be as good as the defendant had just seen at the yard of
524 Davidson v. Johnson. [April T.
Statement of the case.
Samuel Johnson in Ellison, which stock hogs were to be
taken bj defendant in part payment for the fat hogs, at $2.25
per cwt. gross.
3. Plaintiff purchased of defendant one hundred head of
fat hogs, to overrun two hundred pounds apiece, to be taken
from the hogs of defendant then running at the farm of John
Cox with defendant's feeding cattle, and from defendant's
home place, at $3.75 per hundred, to be delivered at the store
of Samuel Johnson in Ellison, on the 16th and 17th days of
February, 1858, to be paid for as follows, viz. : Plaintiff was
to deliver to defendant at Ellison one hundred stock hogs, or
more if he chose, to be as good on an average as those that
said defendant had that day seen at the yard of Samuel John-
son in Ellison, at $3.25 per hundred ; the balance to be paid
for in cash. The plaintiff then alleges that he did deliver, on
the 16th day of February, 1858, at Ellison, one hundred and
more stock hogs of the kind and description called for by his
agreement, yet defendant failed to deliver the fat hogs.
4. Fourth count is substantially like the third, except it
alleges that plaintiff's stock hogs were ready at Ellison to be
delivered.
The issues being formed and submitted to a jury, it
appeared in evidence that the contract was, that the plaintiff
was to deliver to the defendant one hundred stock hogs. The
trial resulting in a verdict and judgment for the plaintiff, the
defendant took this appeal.
The only question presented upon the record is, whether
there was a variance between the allegations and proof in
regard to the number of hogs the plaintiff' agreed to deliver
to the defendant.
Messrs. H. M. Wead, and C. M. Harris, for the appel-
lant.
Messrs. George F. Harding, and A. G. Kirkpatrick, foi
the appellee.
1S63.] Gillilan v. Myers. 525
Syllabus.
Mr. Chief Justice Caton delivered the opinion of the
Court :
We are constrained to say that here is a variance
between the declaration and the proof. In describing the
contract on which the action is brought, the second count of
declaration states that the plaintiff agreed to deliver to the
defendant, from one hundred to one hundred and ten stock
hogs, at two dollars and twenty-five cents per hundred pounds,
toward the payment for the fat hogs, and the third and fourth
counts state the number to be one hundred and more stock
hogs. And these are the only counts which, approximately,
set out the contract. The proof is, that he was to deliver one
hundred stock hogs — no more and no less. That this is
materially variant from the contract set out in the declaration
admits of no question. It is simply self-evident, and admits
of no argument, unless one hundred, and more than one
hundred, are the same.
The judgment is reversed, and the cause remanded.
Judgment reversed.
John Gillilan
v.
Samuel Myers.
1. Bill op Exchange — presumption that drawee has funds. It is the
doctrine that a bill of exchange is presumed to be drawn on funds, with
the understanding between the drawer and drawee, that it is an appropria
tion of the funds of the former in the hands of the latter.
2. Same — what its acceptance admits. The acceptance of a bill n>f
exchange is an admission by the acceptor that the bill is drawn upon funds
of the drawer in his hands.
3. Same — its essential qualities. The essential qualities of a bill of ex-
change are that it must be payable at all events, not dependent on any con
tingency, nor payable out of a particular fund ; and that it be for the pay-
ment of money only, and not for the performance of any other act, or in
the alternative.
526 Gillilan v, Myers. [April T.
Opinion of the Court.
4. Same — what is not such an instrument. This instrument was held
not to be a bill of exchange : " Mr. Myers : Sir — You will please take up
my note payable to Samuel J. Smith, for two hundred and two dollars, with
ten per cent, interest from the first of April, and it will be all right as we
talked. John Gillilan." The writing is a mere letter of request, and
payable on the contingency that Smith should present the note, which he
might never do.
5. That instrument not being a bill of exchange, no presumption could
arise that the writer or drawer had funds in the hands of Myers, the
drawee, and that his acceptance, and payment of the note to Smith, was
an admission thereof.
Appeal from the Superior Court of Chicago.
The pleadings and proofs in this case are set forth in the
opinion of the court.
Messrs. Chase & Munson, for the appellant.
Messrs. King & Scott, for the appellee.
Mr. Justice Breese delivered the opinion of the Court :
This was an action of assumpsit brought by the appellee
against the appellant in the Superior Court of Chicago. The
declaration contained a count for goods, wares and merchan-
dise sold and delivered, and the money counts. Issues
were made up, a trial by jury was had, and a verdict for the
appellee.
It is not material to examine the pleadings in the cause, as
no question is made upon them. .No exceptions were taken
to the instructions, and the only question presented is, should
he court have granted a new trial ?
This depends upon the evidence. To maintain the issue
jn the part of the plaintiff he introduced the following evi-
dence :
" Algonquin, June 8, 1857.
" Mr. Myers : Sir — You will please take up my note payable
to Samuel Smith, for two hundred and two dollars, with ten
per cent, interest from the first of April, and it will be right
as we talked.
JOHN GILLILAN."
1863.] Gillilan v. Myers. 527
Opinion of the Court.
Indorsed on this writing, was the following :
"$205.87. Eeceived, Chicago, June 8, 1857, from Samuel
Myers, two hundred and five dollars and eighty-seven cen ts,
being in full for my note and interest, dated March 16, 1857,
against John Gillilan. S. J. Smith."
The defendant's counsel admitted the signatures of the de-
fendant and of S. J. Smith to the instruments in writing, to
be genuine, and consented they be read in evidence, and
admitted that the defendant sent the letter above described,
directed to the plaintiff, and that the plaintiff, on the ninth
day of June, 1857, at the request of the defendant, took up
the note made by the defendant as requested, and paid the
sum of two hundred and five dollars and eighty-seven cents
in taking up the note, which was the amount of principal and
interest then due upon the note.
Smith, who was called as a witness for the defendant, stated
that he brought such a paper as the above, and saw Myers in
Chicago and gave the paper to him, and he took up the note
and paid the amount he was requested by Gillilan to pay —
thinks this is the paper. Myers first said, " I don't know
about this," turned to some one in the store and said, " Has
any arrangement been made \ " Some one said it had. Myers
paid the money — thinks the amount stated in his receipt —
does not pretend to give the language used by Myers, nor the
other man — don't know what it relates to — knows he got
the money of Myers, and that is all he cared for — he de-
livered the paper to Myers and he paid the money — has no
doubt that Myers paid two hundred and five dollars and
eighty-seven cents, to take up Gillilan's note at Gillilan's
request.
This is all the material portion of the evidence, and on
it, the defeudant makes the point, that the writing sent by
him to Myers, was, substantially, a bill of exchange, and
the presumption of law is, that he had, at the time of draw-
ing the bill, funds in Myers' hands. It is the doctrine, we
believe, that a bill of exchange is presumed to be drawn on
funds with the understanding between the drawer and drawee,
that it is an appropriation of the funds of the former in the
528 Gillilan v. Myers. [April T.
Opinion of the Court.
hands of the latter, and acceptance is an admission that it
was so drawn, and of such a relation between the parties.
1 Parsons on Notes and Bills, 323 ; Baborg v. Peyton, 2
Wheaton, 385 ; Hortsman v. Hens7iaw, 11 Howard, (U. S.)
177. Is this a bill of exchange ?
The essential qualities of such an instrument are said to be,
that it must be payable at all events, not dependent on any
contingency, nor payable out of a particular fund ; and that
it be for the payment of money only, and not for the per-
formance of any other act, or in the alternative. 1 Parsons
on Bills and Notes, 30, 52.
This writing is made payable on the contingency that
Smith presents the note, which he may never do, and is like
the case of Kelly v. Hemmingway , 13 111. 604. The writing
has few of the essentials of a bill of exchange, but is a mere
letter of request to take up a certain note if it is presented.
The case cited in 6 Cowen, 108, Cook v. Satterlee, is directly
in point. There the plaintiff declared, in assumpsit, that on
the 25th of July, 1825, W. F. & C. E. Clarke, according to
the usage and custom of merchants, etc., made their certain
bill of exchange, etc., dated on that day, directed to the
defendant, by which they requested the defendant, ninety
days after date, to pay to the plaintiff or bearer four hundred
dollars, and take up their note given to William and Henry
B. Cook for that amount, dated April 19, 1825, which bill the
defendant on the same day accepted, etc. There was a
demurrer to the declaration, and judgment thereon for the
defendant.
The court, after defining the essentials of a bill of exchange,
say, is not the instrument declared on payable upon a con-
tingency ? From the face of the instrument itself it appears
the drawers had, on the 19th of April preceding its date,
given their note for four hundred dollars, to William and
H. B. Cook, and the object of drawing the instrument in
question was, to take up that note. The engagement of the
acceptors must be construed according to what is required of
them by the drawers. The note was supposed to be in pos-
session of the payee or holder of the bill, and the payment of
1863.] City of Pekin v. Keynolds. 529
Syllabus.
the money and taking up the note of the drawers, must be
simultaneous acts. The acceptors could not take up the note
until it was presented, nor were they bound to pay the money
until the plaintiff was ready, and offered to enable them to
take up the note.
It was held by the court, that the instrument was payable
on a contingency, and is the same as if it had been said, " Pay
W. C. four hundred dollars, on his giving up our note," etc.
We see no difference in principle between that case and this.
The instrument here was drawn on Myers, for the purpose of
taking up drawer's note in the hands of Smith. Myers
accepted the request, with that understanding, and he could
only pay the money when the note was presented and deliv-
ered up.
We are of opinion that this request was not a bill of
exchange, and therefore, the presumption did not exist, that
the writer or drawer had funds in the hands of Myers, the
drawee, and that his acceptance and payment was an admission
thereof.
A new trial was properly refused, and the judgment must
be affirmed. Judgment affirmed.
The City of Pekin
v.
John H. Reynolds.
1. Demand of payment — municipal corporations. If a coupon given
for interest upon a bond executed by a city could, in any event, draw inter-
est in tlie absence of an express agreement, it could only be after a proper
demand of payment.
2. A.nd though the city may have made the coupons, in terms, payable
at another place than its treasury, yet, unless it had express legislative
authority so to do, it was still payable only at the treasury, and the demand
of payment should be made there.
3 Municipal corporations — where their debts are payable. Munici-
pal corporations cannot bind themselves to pay their indebtedness at any
other place than at their treasury, unless specially authorized by legislative
enactment.
67— 31st III.
530 City of Pekin v. Reynolds. [April T.
Statement of the case.
4. Intekest— against whom recoverable. But, there being no agreement
on the subject, the city is not liable to pay interest upon its coupons, at all.
5. At common law, interest was not allowed in any case. It is the
creature of the statute alone.
6. And it is held, that cities and towns, as it has heretofore been held in
reference to the State and counties, not being mentioned in the statute
regulating interest, are not within its provisions so as to be required to pay
interest on their indebtedness.
7. So that, whatever power cities may possess to contract for the pay-
ment of interest, in the absence of express legislation on the subject, their
indebtedness, without such agreement, does not bear interest.
Writ of Error to the Circuit Court of Peoria county ; the
Hon. A. L. Meeriman, Judge, presiding.
The city of Pekin, having subscribed the sum of one hun-
dred -thousand dollars to the capital stock of the "Illinois
River Railroad Company," on the 1st day of January, 1857,
made certain bonds for the sum of one thousand dollars each,
payable to said company or bearer for a portion of such
subscription.
The bonds were made payable twenty years after their
date, with interest thereon at the rate of eight per cent, per
annum from date, payable semi-annually, on the first days of
January and July in each year at the American Exchange
Bank in the city of New York, on the presentation and sur-
render of the proper coupons thereto attached. The coupons
were in the following form :
" The City of Pekin will pay the bearer, at the American
Exchange Bank, in the City of New York, on the first day
of [January, 1861,] forty dollars, interest due on their bond
No. [43.]
M. TACKABERRY, Mayor."
John H. Reynolds, the defendant in error, having become
the holder and owner of some of these bonds, with the
coupons attached, presented the coupons that were due, to the
American Exchange Bank for payment, which was refused.
It does not appear that the payment of the coupons was
ever demanded from the city of Pekin.
1863.] City of Pekin v. Keynolds. 531
Opinion of the Court.
Keynolds instituted in the Circuit Court of Tazewell county,
an action of debt against the city of Pekin, on the 22nd day
of August, 1862, for the recovery of the amount of the
coupons which had become due, and the payment of which
had been refused by the American Exchange Bank.
The plaintiff claimed that interest was recoverable upon
these coupons, but there was no averment of a demand of
payment of the coupons from the defendant.
The defendant pleaded nil debet. The cause was taken,
upon change of venue, to the Circuit Court of Peoria county,
where such proceedings were had, that Eeynolds, the plain-
tiff below, recovered a judgment against the defendant, for
the sum .of $1,280, debt, which was the amount of the coupons
sued upon, and $90.68 damages, which was for interest on
the amount of the coupons from the time they became due.
The defendant thereupon sued out this writ of error, and
presents the question, whether interest was recoverable from
the city of Pekin, upon the coupons.
Messrs. John B. Cohrs, and S. D. Puterbaugh, for the
plaintiff in error.
Messrs. Johnson & Hopkins, for the defendants in error.
Mr. Justice Walker delivered the opinion of the Court :
There was no averment of a demand upon the city treasurer
for payment of these coupons, in this declaration. If such
instruments could, in any event, draw interest without an
express agreement, it could only be after a proper demand of
payment. Until a demand is made, such a body is not in
default. They are not like individuals, bound to seek their
creditors, to make payment of their indebtedness. It was
held, in the case of the People ex rel. v. Tazewell County, 22
111. 147, that municipal corporations could not even bind
themselves to pay their indebtedness at any other place than
at their treasury, unless specially authorized by legislative
enactment. That their debts were payable at the treasury
532 City of Pekin v. Reynolds. [April T.
Opinion of the Court.
of the body. The same rule was adhered to in the case
of Johnson v. Stark County, 24 111. 75. And we see no
reason for overruling or modifying the rule. This declara-
tion was insufficient, therefore, to authorize the recovery of
interest on these coupons, if they could even, in any event^
bear interest. But we may go further, as it was held in
the case of Madison County v. Bartlett, 1 Scam. 67, that the
State and counties were not liable to pay interest upon their
warrants or orders. The court placed it upon the ground
that counties were corporations, with limited powers, and it
must be presumed that they had employed all their means to
cancel their indebtedness. That only being authorized to
levy taxes to a limited extent, the presumption would be, that
they had exhausted their power of taxation without produc-
ing the necessary means to pay the debt. That, as States
and counties are not named in the statute regulating interest,
the inference is, that they were not designed to be required
to pay interest on their indebtedness.
At the common law, interest was allowed in no case. 6
Jacob Law Die. 373. It is the creature of the statute alone,
and to it we must look for authority for its allowance. If
not authorized by the statute it cannot be recovered. It seems
to us that all the reasons why a State or county should not
be liable for interest, apply with equal force to a city or
town. They are municipal bodies created for public purposes,
and with limited powers of taxation. And must be presumed
to have exhausted all of their powers of taxation for the pay-
ment of their debts, and are not in default when they fail to
pay. Nor are they named in the act regulating interest on
indebtedness. "Whatever power they may possess to contract
for the payment of interest, in the absence of express legisla-
tion on the subject, we are of the opinion that their indebted-
ness, in the absence of such agreement, does not bear interest
The judgment of the court below must be reversed, and
the cause remanded.
Judgment reversed.
1863.] Perley v. Catlin. 533
Statement of the case.
Putnam Perley
v.
Archibald M. Catlin.
1 . False representations — made by a third person, without authority.
If a conveyance of land is induced by false and fraudulent representations
made by a third person, who was not even authorized to negotiate in refer-
ence to the subject of the conveyance, much less to make the false repre-
sentations, the grantee will not be held responsible, nor will his title be
affected thereby.
2. Consideration — adequacy. If a consideration be paid upon the
conveyance of land, though it be disproportioned to the value of the land,
it will still support the deed.
Appeal from the Circuit Court of Winnebago county ; the
Hon. Benjamin R. Sheldon, Judge, presiding.
In the year 1850, Putnam Perley purchased from Catlin,
the appellee, a certain parcel of ground in the city of Rock-
ford. Catlin refusing, afterwards, to make a conveyance,
Perley instituted a suit in chancery in the Circuit Court of
Winnebago county, to compel the specific performance by
Catlin of his agreement to convey. That cause came on for
a hearing at the February term, 1858, when a decree was
entered, requiring Catlin to execute a conveyance of the land
to the complainant.
In the month of March following, Perley, in whose favor
the decree had been rendered, conveyed the same premises to
Catlin by a quit claim deed.
In March, 1860, Perley exhibited his bill in chancery in the
court below, against Catlin, by which he sought to set aside
and vacate the quit claim deed which he had previously
executed to the defendant, alleging that there was no consid-
eration for the conveyance, and that he was induced to
execute it through the importunities of one Morrell, who was
employed by Catlin for that purpose, and by threats of a
criminal prosecution for an alleged attempt on his part, to
commit a rape, the charge having been fraudulently set on
foot by Catlin, for the purpose of effecting a release to him
from the complainant, of the premises.
534 Perley v. Catlin. [April T.
Briefs of Counsel.
Catlin answered the bill, denying the material allegations,
and the cause coming on to be heard, evidence was introduced
by both parties, which is sufficiently set forth in the opinion
of the court, and a decree was rendered, dismissing the bill.
The complainant thereupon took this appeal, and assigns for
error, that the Circuit Court entered a decree against him.
Messrs. T. J. Turner, and F. C. Ingalls, for the appel-
lant.
1. The release of the land in question was extorted from
complainant, by the use of means which so affected him that
his judgment was overturned.
Not only was the complainant threatened with the disgrace
of a criminal prosecution, but the parties frightened his wife
also, and operated upon him through her apprehension, as
well as his own. The active agent in this transaction pro-
ceeded with great astuteness and cunning. After his first
interview with complainant, finding him resolute, he goes
away, visits the woman on whom the pretended offense was
charged to have been committed, comes back, and with added
and practiced solemnity returns to the attack. He paints the
inevitable ruin impending upon the complainant and his
family ; reduces him and his wife to a condition in which they
are ready to accede to anything to avert such a catastrophe.
The power and force of the importunities and intimidations,
the condition of the victims, produced thereby, can never be
brought truthfully before a court in a record. The court can
only judge of them by the effect produced.
Means of the character here used have always been held
sufficient to require the courts of equity to interfere. It is
conceived that it is hardly necessary to refer the court to
authority ; the following cases are, however, referred to :
Underhill v. Harwood, 10 Ves. 209 ; Copis v. Middleton,
2 Mad. Kep. 556 ; Stillwell v. Williams, 1 Jac. 280 ; McArr-
tree v. Engart, 13 111. 248; 1 Story's Eq., sees. 239, 246 ; Mo-
Donald v. Nielson, 2 Cow. 159 ; Nantes v. Oonock, 9 Yes.
188, 189, and note 1 ; Whitney v. Roberts, 22 111. 381.
1863.] Perley v. Catlin. 535
Briefs of Counsel.
Money extorted under threats to reputation, is robbery. In
Joneg Case, 1 Leach, 139, 2 East P. C. 714, the court said,
that to constitute robbery, there was no occasion to use
weapons or real violence, but that taking money from a man
in such a situation as rendered him not a free man, as if a
person so robbed were in fear of a conspiracy against his life
or character, was such a putting in fear as would make the
taking of his money under that terror, a robbery ; and they
referred to Brown's Case, (O. B. 1763). Such threat must
necessarily and unavoidably create intimidation. It is equiv-
alent to actual violence, for no violence that can be offered
could excite a greater terror in the mind, or make a man
sooner part with his money. Donally's Case, 1 Leach, 193. In
Hickmarts Case, 1 Leach, 278, 3 East P. 0. 728, Mr. Justice
Ashurst says, that whether the terror arises from real or
expected violence to the person, or injury to the character, the
law makes no kind of difference; for to most men the idea of
losing their fame and reputation is equally if not more terrific
than the dread of personal injury. See also Edgertorts Case,
Euss. & Ky. 375.
2. The defendant claims he ratified the contract made by
Morrell, but insists that he can avoid the representations and
means used by Morrell. This cannot be done,
" If the agent makes misrepresentations, the principal is
bound by them. He cannot ratify the contract, and avoid the
responsibility of the representations." Henderson v. Rail-
road Co., 17 Texas, 560, and authorities there cited.
In Huguenin v. Basely, 14 Yes. Jr. 289, Lord Chancellor
Eldon says: "I should regret that any doubt could be enter-
tained whether it is not competent to a court of equity to
take away from third persons the benefits which they have
derived from the fraud, imposition, or undue influence of
others. The case of Bridgeman v. Green, 2 Yes. Sr. 627,
Wilm. 58, is an express authority that it is within the reach
of the principle of this court to declare, that interests so
gained by third persons cannot possibly be held by them;
and Lord Hardwick observes justly, that if a person could
get out of reach of the doctrine and principle of this court
536 Pebley v. Catlin. [April T.
Opinion of the Court. .
by giving interests to third persons, instead of reserving them
to himself, it would be almost impossible ever to reach a case
of fraud. There is no pretense that Green's brother, or his
wife, was a party to any imposition, or had any due or undue
influence over the plaintiff; but does it follow from thence,
that they must keep the money ? No ; whoever receives it
must take it tainted and affected with the undue influence and
imposition."
" Let the hand receiving it be ever so chaste, if it comes
through a polluted channel, the obligation of restitution will
follow it."
Mr. James M. Wight, for the appellee.
Mr. Justice Walker delivered the opinion of the Court :
It is urged that the quit claim deed, to vacate which, this
bill was exhibited, was obtained by fraudulent representations,
and without consideration. It appears from the evidence in
the record, that Morrell, the brother-in-law of both parties,
unsolicited by either, was the active agent in procuring its
execution. He went to plaintiff in error, and urged him to
make the deed, for the purpose of restoring friendly rela-
tions between the families, to preserve their respectability,
and end all strife. He also urged, as a reason for doing so,
that the former suit in reference to the same property was not
yet at an end, as defendant in error designed to* remove the
cause to the Supreme Court, which would increase the expense.
That if he refused, witness believed defendant in error would
prosecute plaintiff in error, for an assault with intent to com-
mit a rape on a woman residing in the county, a rumor of
which was then in circulation.
It appears that plaintiff in error refused at the first interview
with Morrell, but on his return, after having an interview
with the woman, he consented and executed the deed. But
not until he informed plaintiff in error that she confirmed the
truth of the rumored assault. He also assured him that he
believed defendant in error would do what was right. Plaintiff
1863.] Perley v. Oatlin. 537
Opinion of the Court.
in error acted with reluctance. This conversation was had in
the presence of the wife of plaintiff in error, who was deeply
distressed. Witness gave the assurance that defendant in
error would at least, pay his lawyer's fee in the former suit,
and would, perhaps, repay him all the money he had paid to
defendant in error upon the land. After the deed was exe-
cuted, witness returned to Rockford and delivered the deed to
defendant in error.
At the time of its delivery defendant gave to witness his
note for one hundred dollars, on which he procured the money,
and paid to plaintiff's attorney in the previous litigation, $80,
and the remaining twenty was paid on a bill of costs in that
suit for which plaintiff was liable. In the afternoon of the
same day, plaintiff came to Rockford for the purpose of
repossessing himself of the deed, but it had then been de-
livered.
This witness positively denies that this arrangement was
made at the request of defendant in error. Nor is there any
evidence in the record tending to support that charge in the
bill, and even if false and fraudulent representations were
made, which does not appear, defendant in error was not a
party to, or responsible for, them. The evidence shows that
plaintiff acted under excitement, and that the circumstances
which surrounded him operated with considerable pressure, and
that he finally yielded reluctantly. But there is no evidence
that he is a man of weak mind or small capacity, but on the
contrary, that his mind and business capacity are above the
average of men. He appears to be fully capable of judging
correctly and of acting with firmness. N"or do we discover
that the deed was procured under threats of a prosecution
on a groundless charge ; on the contrary, the witness went and
saw the woman to know whether it was true, before the deed
was executed.
It is true that no money was paid as a consideration at the
time the deed was delivered to Marshall. But defendant in
error did pay one hundred dollars when the deed was delivered
to him. This money was paid to Marshall, who was author-
ized to receive it by plaintiff in error. It was appropriated to
68 — 31st III.
538 Foy v. Blaokstone. [April T.
Syllabus.
the payment of his debts, according to his directions. This
money was paid and received as the consideration for the
deed. It was paid on the delivery of the deed, and to plain-
tiff's agent, authorized to deliver the deed, and to receive the
money. He received all that he had any positive assurance
he would get. This consideration, although disproportioned
to the value of the land, was adequate to support the
deed.
We can perceive no grounds for reversing the decree, and
it must be affirmed.
George Pot
Timothy B. Blaokstone.
1. Promissory note — delivery. Delivery of a promissory note is
essential to its validity.
2. Same — as an escrow. Like deeds, promissory notes can be delivered
as escrows, to take effect only upon the happening of a certain event.
3. Parol evidence — escrow. When a note is delivered as an escrow
to take effect on the happening of a certain event, whether such event has
occurred may be proven by parol.
4. Same — varying terms of the instrument. But parol proof must not
go to the extent of varying the terms of a note absolute on its face, show-
ing that though on its face.it was given for one purpose, yet in fact, it was
given for a different purpose.
5. The rule is well settled, that the maker of an absolute note cannot
show against the payee, and, a fortiori, not against any indorsee, an oral con-
temporaneous agreement which makes the note payable on a contingency.
6. Same — how far allowable. Parol evidence would, however, be admis-
sible to impeach the consideration of the note, or to show fraud in the
transaction.
7. Assignee before maturity — how far protected. When an assignee
sues upon a note which was assigned before maturity, an offer to prove
matters in defense which could be made availing against the assignee only
in case he had notice, should be accompanied by an offer to prove that he
had knowledge of such defense, when he took the assignment.
1863.] Foy v. Blackstone. 539
Statement of the case.
8. Fraud — what constitutes. An agreement between a railroad company
and a subscriber to the stock of the company, that the latter should not be
required to pay his subscription until all the stock was subscribed, and that
if the road should not be built within a certain time, he should not be re-
quired to pay it at all, would be a fraud upon other stockholders who sub-
scribed upon less favorable terms ; and such an agreement ought not to be
enforced.
9. Assignment — consideration— pre-existing debt. The fact that an as-
signee receives the instrument in payment of a pre-existing debt due him
from the assignor, can make no difference in his right to a recovery upon
it. He is the assignee for a valuable consideration and entitled to all the
rights of such.
10. Same — in what manner questioned. A party desiring to question
the assignment of a note on a trial before a justice of the peace, must deny
the assignment by affidavit.
Appeal from the Circuit Court of Whiteside county ; the
Hon. John Y. Eustace, Judge, presiding.
George Foy, the appellant, having subscribed ten shares of
one hundred dollars each, to the capital stock of the Camanche,
Albany and Mendota Railroad Company, executed his bond
to the company therefor, on the 10th of February, 1857,
payable ten years after its date; and on the same day the
said Foy executed and delivered to the company his coupon
note for one year's interest on said bond, as follows :
" Prophetstown, Feb. 10, 1857.
" On the first day of March, 1859, I promise to pay to the
order of the Camanche, Albany and Mendota Railroad Com-
pany, one hundred dollars at their office in , State of
Illinois, for value received, being one year's interest falling
due on that day, on my bond of even date herewith, payable
to the order of the said company at their office as aforesaid.
GEORGE FOY."
This note, together with the bond, was assigned, before
maturity, to Timothy B. Blackstone.
The note coming due and remaining unpaid, Blackstone,
the assignee, instituted suit upon it before a justice of the
peace of Whiteside county, and recovered a judgment against
Foy, who took an appeal to the Circuit Court. When the
note was offered in evidence upon the trial in the Circuit
Court, it appeared to be indorsed in blank, thus : " Samue*
540 Foy v. Blackstone. [April T„
Statement of the case.
Happer, Treasurer." The court allowed the plaintiff, against
the objection of the defendant, to fill in the indorsement
as follows : " Pay Timothy B. Blackstone or order, Ca-
manche, Albany and Mendota Railroad Company, by"
The defendant still objected to the introduction of the
note in evidence, on the ground that the company had no
authority to take and transfer the note in the manner it was
taken and transferred, and upon the further ground that the
plaintiff should first show that the directors of the company
had made a demand upon Foy for the amount of his sub-
scription ; and that it should be shown the directors authorized
the taking of the note.
The defendant also insisted the company had no power to
take the note, and that there was no consideration therefor.
But the Circuit Court overruled the objections, and admitted
the note in evidence ; to which the defendant excepted.
The defendant then offered to prove certain facts by way of
a defense to the note. The matters thus offered to be set up
are sufficiently explained in the opinion of the court.
The trial resulted in a judgment against Foy, who there-
upon took this appeal, and now alleges, that
1. The court erred in permitting the note to go to the jury
until it was proved by competent evidence that Happer, the
treasurer, had authority to transfer said note.
2. In permitting the note to be given in evidence to the
jury until it was proved that the directors had made a demand
on defendant below, for his capital stock.
3. In letting the note go to the jury without proof that the
directors authorized the taking of it.
4. The company had no power to take said note.
5. There was no consideration for said note.
6. The evidence offered by the defendant below, ought to
have been admitted.
Mr. Samuel Strawder, for the appellant.
Mr. B. C. Cook, for the appellee.
1863.] Foy v. Blackstone. 541
Opinion of the Court.
Mr. Justice Breese delivered the opinion of the Court :
All the questions raised on this record have been decided in
the case of Goodrich v. Reynolds, Wilder <& Co., ante, 490,
except one, and that arises upon the sixth assignment of error,
which is, that the court rejected certain evidence offered bj
the defendant.
It appears from the record, the defendant offered to prove
when the bond and coupon notes were given by him to the
company, it was agreed between him and the company, acting
by A. J. Matson, a director of the company, that the note
was to be kept by the company in the possession of Matson as
the director and agent of the company, and that the defend-
ant was not to be held liable on it. until the whole amount of
the capital stock required to build the road, should be sub-
scribed for and taken, and if the road was not built and com-
pleted within two years from the date of the bonds and
coupons, then the bonds and coupons were to be given up to
the defendant, and that the capital stock had not been sub-
scribed for, and the road has not been built.
Delivery of a note is essential to its validity ; the conditions,
therefore, under which a note was delivered, if there were any,
may, sometimes, become an important subject of inquiry.
Like deeds, they can be delivered as escrows, to take effect
only upon the happening of a certain event to be proved by
parol. 1 Parsons on Notes and Bills, 51. But such proof
must not go to the extent of varying the terms of a note
absolute on its face, showing that though on its face, it was
given for one purpose, yet in truth and in fact, it was given
for a different purpose, but only such parol evidence as will
go to impeach the consideration of the note, or show fraud in
the transaction.
We believe the rule is well settled, that the maker of an
absolute note cannot show against the payee, and, a fortiori,
not against any indorsee, an oral contemporaneous agreement
which makes the note payable on a contingency. 2 Parsons
on Notes and Bills, 508, and cases cited in the notes.
The plaintiff in this case, held the bond and coupon note as
542 Foy v. Blackstone. [April T.
Opinion of the Court.
assignee of the railroad company, and assigned before due.
His right of action, therefore, cannot be defeated by any such
agreement as the defendant proposed to prove. Besides, the
offer was not accompanied with the further offer to prove that
the plaintiff knew these facts, when he took the assignment.
In principle, it is identical with the case of Lane v. Sharp,
3 Scam. 572, where the defendant offered to prove, that if the
land for which the note sued on was given should not be re-
deemed in two years, the note should be returned. The court
held such proof inadmissible. To the same effect are the
cases cited by counsel for appellee, of Harlow v. Boswell, 15
111. 57, and Perry v. Graves, 12 111. 288, and numerous other
cases of the same import are referred to, in 2 Pars, on Notes
and Bills, 508. It may be said, too, that such an agreement
would be a fraud upon other stockholders. Honesty and fair
dealing required that all subscriptions of stock should be real
and not colorable. A secret agreement to release one set of
subscribers, or one particular subscriber, would be unfair, and
ought not to be enforced by a court of justice.
The fact that the assignee received this bond in payment of
a pre-existing debt due him by the company, can make no dif-
ference in his rights to a recovery upon it. He is the assignee
for a valuable consideration, and entitled to all the rights of
such. Story on Promissory Notes, sec. 195 ; 2 Parsons on
Notes and Bills, 218. .
As to the point made on the assignment, that was not in
issue. It was not denied in the mode prescribed by law.
Archer v. Bogue, 3 Scam. 527; Mclntyre v. Preston, 5 Gilm.
64 ; Hudson v. Dickinson, 12 111. 408.
Perceiving no error in the record, the judgment is affirmed
Judgment affirmed.
1863.] County of Rock Island v. Steele. 543
Statement of the case.
The County of Rock Island
v,
Joseph Steele.
Same
v.
The State Bank.
1. Counties — in what manner to be sued, and by what authority. A
county has not the capacity to be sued except it is conferred by special
statute ; and when that capacity is so conferred, the mode pointed out by
the statute must be strictly pursued.
2. Counties which have adopted township organization, can be sued only
in the name of the board of supervisors.
3. Misnomer — need not be pleaded. If such county is sued by any
other name than that of the board of supervisors, it is error, and there is
no necessity for a plea of misnomer, as in ordinary cases.
4. Judicial notice. The Supreme Court will take judicial notice of
the fact that a county has adopted township organization.
Appeals from the Circuit Court of Henry county; the
Hon. Ira O. Wilkinson, Judge, presiding.
These were actions of debt instituted by the appellees,
respectively, against the appellant, by the name and style of
" The county of Rock Island," that county having previously
adopted township organization.
The suits were commenced in the Circuit Court of Rock
Island county, and removed, upon change of venue, into
the Circuit Court of Henry county, in which such proceed-
ings were had that judgments were rendered against the
county.
From those judgments the county took these appeals. The
only question presented is, whether the county was sued in
the proper name.
Mr. J. B. Hawley, for the appellant.
Mr. Charles M. Osborn, for the appellee.
544 County of Hock Island v. Steele. [April T.
Opinion of the Court.
Mr. Chief Justice Caton delivered the opinion of the
Court :
We shall notice but one of the several questions raised in
these causes, for that we meet at the very threshold, and
it is decisive of them, and hence, necessarily, supercedes all
others.
The actions are brought against " The County of Rock
Island," while the statute, in express terms, requires that they
should be brought against " The Board of Supervisors of the
County of Rock Island." We have often decided that we
must take judicial notice of the adoption of township organi-
zation by any county in the State; and so we know that
Rock Island county has adopted that law. The first section
of the thirteenth article of the township organization law of
1861, confers upon the counties thus organized, the capacity
" to sue and be sued in the manner prescribed by law," and
this manner is prescribed in the third section of the same
article, as follows : " All acts and proceedings by and against
a county in its corporate capacity shall be in the name of the
board of supervisors of such county."
In Schuyler Co. v. Mercer Co., 4 Gilin. 20, we stated,
what is familiar to all, that a county has not the capacity
to be sued except it is conferred by special statute, and
when that capacity is so conferred, the mode pointed out by
the statute must be strictly pursued. And this seems specially
enjoined in this statute. It confers the capacity " to sue and
be sued in the manner prescribed by law ;" clearly limiting
that capacity to the manner thus prescribed. In any other
mode, the capacity is wanting ; as much as if there were no
law authorizing the county to be sued. In no other mode
could the county be brought before the court. In no other
name was any one authorized to appear for the county.
Hence, there was no necessity for a plea of misnomer as in
ordinary cases.
The whole proceeding , was unauthorized by law. The
judgment must be reversed.
Judgment reversed.
INDEX.
ABATEMENT.
Of pleas in abatement, etc. See PLEADING.
ACCEPTANCE.
Of bill of exchange, admits funds. See BILLS OF EXCHANGE
AND PROMISSORY NOTES.
ACCOUNTS. See SETTLEMENT OF ACCOUNTS.
ACTION.
Of the right of action, generally.
1. If an officer in whose hands an execution is placed, shall, without
the consent of the creditor, so delay making a proper levy, that the
rights of third parties intervene, the creditor has his remedy against
the officer. Davidson v. Waldron et al. 120.
2. If a party receives property from a warehouseman, which had been
stored with the latter by others, and applies it to the payment of a debt
due to him from the warehouseman, the party who thus receives and
applies the property will be liable to the real owners. Warner v. Gush-
man et al. 283.
Remedy of assignee of mortgage. See ASSIGNMENT— ASSIGNOR —
ASSIGNEE.
Action upon an injunction bond. See INJUNCTION.
Who has remedy against fraud. See FRAUD.
Action on the case. See CASE.
ADJOURNMENT.
Of judicial and trustees' sales. See SALES.
ADMINISTRATOR. See EXECUTORS AND ADMINISTRATORS.
ADVANCEMENT.
BY PAIiENT TO child.
1. Its characteristics — when sustainable as regards creditors, prior
and subsequent, etc. When a parent purchases land with his own
means, in the name of his infant child, it has generally been consid-
ered an advancement. Bay et al. v. Cook, 336.
2. But it is a question of intention, each case to be determined by
the reasonable presumption arising from all the facts and circumstances
connected with it. It is always competent to meet and repel the pre-
sumption, by proof of circumstances showing it was not intended an
an advancement. Ibid. 336.
69— 31st III.
546 INDEX.
ADVANCEMENT. By parent to child. Continued.
3. When fraud is established, that presumption is effectually
repelled. Bay et al. v. Cook, 336.
4. A parent may give to his child, so much of his estate as he
pleases, provided he retains enough to answer all subsisting demands
against himself. Ibid. 336.
5. Whether such gifts are valid or not, and made without the inten-
tion to injure creditors, is wholly a matter of inference from the facts.
Ibid. 336.
6. An advancement to a child, may be regarded in the same light
as a voluntary settlement of property upon him by the father. The
difference is only in the form. Ibid. 336.
7. In such case, it is not necessary the father, making the settle-
ment, should be actually indebted at the time he makes it, to render
it fraudulent ; if he does it with a view to his being indebted at a
future time, it is equally fraudulent, and will be set aside. Ibid. 336.
8. A deed executed by a third person to the child, by the procure-
ment of the parent, is, to all intents and purposes, a deed from the
parent to him. Ibid. 336.
9. It is contrary to public policy to allow a security upon the official
bond of a deputy sheriff, so to advance a son, or make a voluntary
settlement upon him of all his estate, as to defeat the bond. Ibid. 336.
10. It would be but right that courts should hold such contingent
liabilities as equivalent to an actual j udgment. Ibid. 336.
11. So, where a party who was security upon the official bond of a
deputy sheriff, the condition of which was broken, used the greater
portion of his means in purchasing land in the name of his infant
child, the residue of his property being insufficient to pay his obliga-
tion under the bond, it was held, the gift was fraudulent as to the cred-
itor, and the child held the land in trust for his benefit. Ibid. 336.
ADVERSE POSSESSION. See CONVEYANCES, 1.
AFFIDAVIT.
For an attachment. See ATTACHMENT.
For a continuance. See CONTINUANCE.
Denying assignment. See ASSIGNMENT, Etc.
AGENT.
His rights and duties.
1. An agent is bound to the utmost good faith towards his princi-
pal ; he has no right to realize a profit out of the fund intrusted to
him. Merryman v. David, 404.
2. So, where an agent is authorized to sell land of his principal, at
a fixed price, if he sells it for a higher price, he must account to hi*
principal for the excess. Ibid. 404.
3. But, in the absence of fraud, he is not answerable to the pur-
chaser of the land for such excess. Ibid. 404.
INDEX. 547
AGENT — Continued.
Special agent.
4. Must act within his authority. The acts of a special agent are
not binding upon his principal, unless they are strictly within his
authority. If he is empowered to sell land at public auction at a par-
ticular time, and at a particular place, and on certain terms, such terms,
place and time, must be strictly observed. Thornton v. Boyden, 200.
5. So, a power of sale conferred in a deed of trust, must be strictly
pursued as to the time of giving notice of the sale. Ibid. 200.
May forfeit compensation.
6. Where a party purchases grain for another under an agreement
that he is to receive a certain commission therefor, he is not entitled to
the commission for making the purchase, if he fails to deliver the
grain or appropriates it to his own use. Myers et al. v. Walker, 353.
ALTERATION OF INSTRUMENTS.
In copying a deed of trust executed by Wilson Lindley, into a deed
which was executed by the trustee in pursuance of a sale of the prem-
ises made by him under the deed of trust, it appears that James Lind-
ley had been written in that part of the deed of trust so copied, which
granted the power of sale, but the name James had been erased, and
Wilson inserted, in a different handwriting from the rest of the deed ;
but the alteration did not vitiate the deed ; writing the name James
was deemed only a clerical error in copying ; and moreover, the whole
deed showed Wilson to be the granting party. Pardee v. Lindley, 174.
AMBOY. See CITY OP AMBOY.
APPEAL FROM JUSTICES.
Of the appeal bond.
1. In forcible detainer. Sevrible, an appeal bond given upon an
appeal to the Circuit Court, taken by the defendant in an action for for-
cible detainer, should be in a penalty sufficient to secure the payment,
not only of the costs of the suit, but also the rents becoming due from
the commencement of the suit until the final determination thereof.
Billings v. Lafferty, 318.
When summons must issue. See PROCESS.
Appearance — dismissal, etc.
2. When an appeal from the judgment of a justice of the peace is
perfected by filing the appeal bond in the office of the justice, in which
case no summons is required to be issued, the appellee may, without
having been served with a notice of the appeal, enter his appearance
,in the Circuit Court, and, upon his motion, the appeal may be dismissed
for want of prosecution. Boyd v. Kocher, 295.
3. But if the appeal is perfected by filing the appeal bond in the
office of the clerk of the Circuit Court, in which case a summons to the
appellee must issue, and the appellant has used proper diligence in
procuring process, the appellee, if not served with process, has no
right, by entering his appearance, to have the appeal dismissed foi
want of prosecution. Ibid. 295.
548 INDEX.
APPEAL FROM JUSTICES. Appearance — dismissal, etc. Continued
4. And if the appealing party in such case, omit to use proper dili-
gence in procuring process, the appellee may, without having beea
served with summons, by entering his appearance in the Circuit Court,
hold the same position he would if duly served. Boyd v. Kocher, 295.
APPEARANCE.
On appeals from justices. See APPEALS FROM JUSTICES, 2, 3, 4.
ARREST.
With and without process.
1. Executive officers of a court may, upon a mere order of the
court, detain persons who are in the presence of the court, or who are
already in custody ; but it does not follow that such an order may be
sent into the country, without process, which will authorize an arrest.
Leighton v. Hall, 108.
2. Before a sheriff can be required to make an arrest, out of the
presence of the court, he should be furnished with such process as the
constitution prescribes. Ibid. 108.
3. So, a certified copy of a mere decretal order or rule of a court of
chancery, directing the sheriff to attach the body of a party, and detain
him in close custody until he shall comply with certain requirements
of the court, will not authorize the officer to make the arrest, nor is it
his duty to obey the command in the order or rule in that respect.
Ibid. 108.
ARREST OF JUDGMENT.
Defective declaration.
If the declaration be so defective that it will not sustain a judgment,
that may be taken advantage of, on a motion in arrest of judgment, or
on error. Schofield v. Settley et al. 515.
ASSIGNMENT — ASSIGNOR — ASSIGNEE.
What is assignable, and what is not.
1. By the common law, choses in action were not assignable. Old*
v. Gumming s et al. 188.
2. Our statute makes certain choses in action assignable, as promis
eory notes ; but a mortgage given* to secure such notes, is not assign-
able, either by the common law, or under the statute. Ibid. 188.
What passes by an assignment.
3. Note and mortgage. The assignment of promissory notes which,
are secured by mortgage, carries with it the mortgage, which is but an
incident to the principal debt. Pardee v. Lindley, V74t ; Olds v. Cum
mings et al. 188.
4. But this is true only in equity. Olds v. Cummings et al. 188.
5. Power of sale in mortgage. And where the mortgage gives to th»
mortgagee or his assigns, power to sell, upon default in payment, an
assignment of the note secured by the mortgage, will vest the powei
of sale in the assignee ; such power thereby passes from the mortga-
gee, and can no longer be executed by him. Pardee v. Lindley, 174.
INDEX. 54U
ASSIGNMENT —ASSIGNOR —ASSIGNEE. Continued.
Assignee op mortgage.
6. Conveyance by him. A mortgage contained a power of sale author-
izing the mortgagee, his personal representatives or assigns, to sell the
premises, and as the attorney of the mortgagor, to execute deed to the
purchaser : Held, that the assignee of the mortgagee could only con-
vey the title as the attorney of the mortgagor, and by using the name of
his principal in the conveyance ; a deed made by the assignee in his
own name as grantor, was held not to pass the title. Speer v. Had-
duck, 439.
7. Cannot recover in ejectment. An assignee of a mortgage cannot re-
cover the premises in ejectment, where he claims to be the owner in
fee simple. Ibid. 439.
8. His remedy. The assignee of a mortgage has no remedy upon it
at law, except it be treated as an absolute conveyance, and the mort-
gagee convey the premises to the assignee by deed ; and whether this
can be done, the authorities are not agreed. Olds v. Cummings et al. 188.
9. Our statute authorizing foreclosure of mortgages by scire facias,
has confined the right to the mortgagee, and does not give this remedy
to an assignee. Ibid. 188.
Assignee before maturity.
10. In an action by an assignee upon a promissory note, alleged to
have been assigned before maturity, a plea of want of consideration, to
make the defense availing, should aver that the note was assigned after
it became due. Goodrich v. Reynolds, Wilder & Co. 490.
11. If the payee of a note assign it before maturity, to a third per-
son, to satisfy a pre-existing debt, the assignee having no notice of a
want of consideration in the note, the defense will not avail against
him. Colliding v. Vail, 166.
12. When an assignee sues upon a note which was assigned before
maturity, an offer to prove matters in defense which could be made
availing against the assignee only in case he had notice, should be ac-
companied by an offer to prove that he had knowledge of such defense,
when he took the assignment. Foy v. Blackstone, 538
Assignment for collection.
13. Will not pass title. Where the owner of a note, and a mortgage
given to secure the same, assigns them upon a separate paper, for the
purpose of enabling the assignee to make collection, such assignment
will not pass the legal title. Fortier v. Darst, 212.
Assignee of equitable rights.
14. How far protected. While a court of chancery will enforce the
equitable rights of assignees, it will be done with a scrupulous regard
to the equitable rights of others. Olds v. Cummings et al. 188.
15. Thus, if the assignee of a judgment attempt to enforce it in
equity, without regard to the amount he may have paid for it, or his
ignorance of its having been paid, or of any other reason why it should
not be collected, the court of equity will look into all the circumstances,
and will not enforce it in his favor, if it should not have been en-
forced in the hands of his assignor. Ibid. 188.
550 INDEX.
ASSIGNMENT, Etc. Assignee of equitable rights. Continued.
16. He who buys that which is not assignable at law, relying upon
a court of chancery to protect and enforce his rights, takes it subject to
all the infirmities to which it would have been liable in the hands of
the assignor. Olds v. Cummings et al. 188.
17. A promissory note, though secured by mortgage, is still com-
mercial paper, assignable at law ; and when the remedy is sought upon
that, all the rights incident to commercial paper, will be enforced in the
courts of law ; but when resort is had to a court of equity to foreclose
the mortgage, that court will let in any defense which would have been
good against the mortgage in the hands of the mortgagee himself —
and this, regardless of the fact that the assignee may have purchased
the notes in good faith, and before their maturity. Ibid. 188.
18. But, notwithstanding the rule that the assignee in such case,
will be subject to any equitable defense which could have been made
available against his assignor, it must be understood, it seems, as being
limited to such defenses as exist in favor of the original obligor ; for
the assignee would be protected against the latent equities of third
persons, of whose rights he could ha've had no notice. Ibid. 188.
19. The assignee of an equitable title, to enforce which, he must re-
sort to a court of chancery, takes such title with all the equities and
infirmities existing against it, and can claim nothing under it which
his assignor could not have claimed. Fortier v. Barst, 212.
Assignment of note by a railroad company.
20. By whom to he made. A promissory note made payable to a rail-
road company, was assigned thus : " Sterling and Rock Island Railroad,
per M. S. Henry, President." Held, that the assignment was, prima
facie, the act of the company by their authorized officer. Goodrich v.
Reynolds, Wilder & Co. 490.
Assignor may control his indorsement.
21. Although the payee of a note may have written an assignment
upon the back of it, yet if it remains in his possession, he will be
deemed not to have parted with his interest in the note ; no such in-
dorsement would conclude him as to the fact of an assignment. Par-
dee v. Lindley, 174.
22. Whatever writing the payee of a note may have put upon it, he
may, while it remains in his hands, erase, or otherwise render inopera-
tive. Ibid. 174.
Mode of questioning assignment of note.
23. Where a party sues upon a promissory note as the assignee of a
railroad company, and the assignment is not their act, it should be
denied by plea, verified by affidavit. Goodrich v. Reynolds, Wilder &
Co. 490.
24. A party desiring to question the assignment of a note on a trial
before a justice of the peace, must deny the assignment by affidavit
Foy v. Blackstone, 538.
A ssignment in bankruptcy. See BANKRUPTCY
INDEX. 551
ATTACHMENT.
Of the affidavit.
1. Its requisites. An affidavit upon which an attachment is to be
sued out which states that the affiant is informed and verily believes the
debtor is about to depart from the State, with the intention of remov-
ing his effects from the same, to the injury, etc., is not sufficient ; the
facts should be set forth by positive averment. Archer et til. v.
Claflin et al. 306.
When it may issue to foreign county.
2. Where a writ of attachment is sued out to a foreign county, and
there levied upon property of the defendant, the court will acquire no
jurisdiction, unless an attachment shall also be issued to the sheriff of
the county in which the suit is instituted, and there levied upon prop-
erty of the defendant, or served personally upon him. Fuller et al. v.
Langford et al. 248.
ATTORNEY. Conveyance by attorney. See CONVEYANCE.
ATTORNEY AT LAW.
His authority, duty and liability.
1. In the collection of debts. An attorney's duty does not cease upon
the recovery of a judgment on a claim which is put in his hands for
collection ; he should collect the money after the judgment is recovered,
unless it is otherwise agreed between him and his client. Smyth et al.
v. Harvie etal.62.
2. And where, in the process of collecting, land is sold under an
execution which issued upon such judgment, it is the duty of the at-
torney to receive the money which may be paid to the sheriff in
redemption from such sale. Ibid. 62.
3. The collection of money is a part of the professional business of
an attorney at law. Ibid. 62.
4. If an attorney fails to pay over money collected, an action on the
case will lie against him to recover it. Tinkham & Go. v. Heyworth,
519.
5. Money collected by an attorney never becomes his, nor has he
any right to use it, but should pay it over immediately, without demand.
Ibid. 519.
Attorneys at law, as partners. See PARTNERSHIP
ATTORNEY, STATE'S. See STATE'S ATTORNEY.
AURORA— Court of Common Pleas. See COURTS.
AVERMENTS. See CHANCERY, 11 ; PLEADING.
BAIL.
Holding to bail in criminal cases.
Former holding, not a bar. Where a person who is accused of hav-
ing committed a criminal offense, has, by collusion and contrivance of
the witnesses, the complainant and justice of the peace, been arrested
and discharged on bail, he may be again arrested by a warrant issued
by another justice of the peace, and required to give bail in a larger
amount for the same offense. Bulson et al. v. The People, 409.
55^J INDEX.
BAILMENT.
Degree of care required op bailee.
1. Warehouseman. A warehouseman who receives the grain of
another for the purpose of storage, is only bound to ordinary care in
its preservation. Myers et at. v. Walker, 353.
2. But where a warehouseman purchases grain for another, and has
it in store, he takes the risk of any loss that may occur, until such de-
livery as will pass the title to the party for whom the grain was
bought. Ibid. 353.
BANKERS.
AS COLLECTORS.
1. An action on the case will not lie against a banker for failing to
pay over money collected by him in that capacity, for another. Thrih-
ham & Go. v. Heyworth, 519.
2. When the collection is made, the banker may credit the customer
with the amount, and he then holds it the same as an ordinary deposit.
And this whether the customer keeps an account with the bank, or not,
as depositor. Thus the relation of debtor and creditor is created, and
the form of action to recover the money, must conform to that relation.
Ibid. 519.
BANKRUPTCY.
OF THE DECREE.
1. It is not necessary that a decree in bankruptcy should, in terms,
direct the assignee to make sale of the property of the bankrupt, in
order that he shall have authority to do so, when there is a rule of the
court requiring that to be done. Holbrook v. Brenner et al. 501.
2. One who is not a party to a proceeding in bankruptcy, will not
be affected by the decree therein. Ibid. 501.
Sale by the assignee.
3. Pre-requisites to its validity. Indeed, a sale by the assignee is
made valid, whether these requirements have, or not, been observed.
Ibid. 501.
4. It is not essential to the validity of a sale by an assignee in
bankruptcy, that it be made within two years after his appointment.
The 10th section of the bankrupt act is only advisory on that sub-
ject. Ibid. 501.
5. Sale not affected by subsequent decree. A decree in bankruptcy
and the appointment of an assignee pass all the title from the bank-
rupt to the assignee. And a sale thereafter made by the assignee will
not be at all affected by a subsequent decree relating to the same
premises. Ibid. 501.
Deed from the assignee.
6. Pre-requisites to its admissibility in evidence. It is not essential
to the admissibility in evidence of a deed executed by an assignee in
bankruptcy, that it should be proven the assignee had complied with
the condition in the decree appointing him, that he should execute a
bond. Ibid. 501.
INDEX. 553
BANKRUPTCY. Deed from the assignee. Continued.
7. Where the deed contains the recitals prescribed in the 15th sec-
tion of the bankrupt law of 1841, the deed itself is conclusive evidence,
in a collateral proceeding, that the terms of the decree, and the rules
of court, were complied with by the assignee. Holbrook v. Brenner
et al. 501.
8. It is also evidence that the sale was reported to, and approved
by the court. Also, that proper notices were given of the time, place
and terms of the sale. Ibid. 501.
Discharge in bankruptcy — its effect upon prior liens. See LIENS.
BILL OF EXCEPTIONS.
When necessary.
1. The sworn answer of parties to a writ of attachment issued
against them to show cause why they should not be fined for contempt
in refusing to obey a peremptory writ of mandamus, is no part of the
record of the proceedings upon the writ of attachment, unless it be
made so by bill of exceptions. Commissioners of Swan Township v.
People ex rel. Walden, 97.
2. A party cannot question, on error, the ruling of the court below
in refusing to require the plaintiff to file a more definite bill of par-
ticulars, unless that already filed be preserved in the record by bill of
exceptions. Schofield v. Settley et al. 515.
BILLS OF EXCHANGE AND PROMISSORY NOTES.
Bills of exchange.
1. What constitutes a bill of exchange. The essential qualities of a
bill of exchange are, that it must be payable at all events, not
dependent on any contingency, nor payable out of a particular fund ;
and that it be for the payment of money only, and not for the perform-
ance of any other act, or in the alternative. Qillilan v. Myers, 525.
2. This instrument was held not to be a bill of exchange: "Mr.
Myers: Sir — You will please take up my note payable to Samuel J.
Smith, for two hundred and two dollars, with ten per cent, interest
from the first of April, and it will be all right as we talked. John
Gillilan." The writing is a mere letter of request, and payable on
the contingency that Smith should present the note, which he might
never do. Ibid. 525.
8. Presumption that drawee has funds. It is the doctrine that a
bill of exchange is presumed to be drawn on funds, with the under
standing between the drawer and drawee, that it is an appropriation
of the funds of the former in the hands of the latter. Ibid. 525.
4. Acceptance admits funds. The acceptance of a bill of exchange
is an admission by the acceptor that the bill is drawn upon funds of
the drawer in his hands. Ibid. 525.
5. The instrument above given not being a bill of exchange, no
presumption could arise that the writer or drawer had funds in the
hands of Myers, the drawee, and that his acceptance, and payment of
the note tc Smith, was an admission thereof. Ibid. 525.
70— 31st III.
554 INDEX.
BILLS OF EXCHANGE AND PROMISSORY NOTES. Continued.
PROMISSORY NOTES.
6. What constitutes a promissory note. All promissory notes, under
our statute, are negotiable. They all purport, on their face, to be
payable without defalcation or discount. The insertion, therefore, of
those words in the body of the notes, would give them no other meaning
or legal effect than the statute gives them. Archer et al. v. Glaflin et al.
306
7 And if a note be made payable " without defalcation or dis-
count," those words being expressed in the body of the instrument,
it would still be subject to any claims to discount the defendant might
be able to substantiate. Ibid. 806.
8. Under our statute, this would be a negotiable promissory note :
" I promise to pay A. B. ten dollars," or any other sum of money, or
article of personal property, and signed by the maker. Such a note
has all the constituents of negotiable paper, of the highest character.
It need not be expressed for value received, nor payable to order, to
make it negotiable ; nor need it have a date, as delivery gives it effect,
and no time being specified, it is payable on demand. Ibid. 306.
9. Must be delivered. Delivery of a promissory note is essential to
its validity. Foy v. Blackstone, 538.
10. Who may be parties. A railroad company have an inherent
authority to take and negotiate a promissory note in the ordinary
course of their business. Goodrich v. Reynolds, Wilder & Go. 490.
11. So, such company may take a promissory note in payment of
capital stock subscribed in it. Ibid. 490.
12. But they cannot, as a branch of their business, deal in notes
and bills of exchange — they can only make such paper subservient to
the great design. Ibid. 490.
13. Holder may control indorsement. Whatever writing the payee
of a note may have put upon it, he may, while it remains in his hands,
erase, or otherwise render inoperative. Pardee v. Lindley, 174.
14. So, if the payee has written an assignment upon a note, and it
still remains in his possession, he will be deemed not to have parted
with his interest in the note ; such indorsement would not conclude
him as to the fact of an assignment. Ibid. 174.
Delivery of note as an escrow. See ESCROW.
BOND.
Of deputy sheriff.
1. The statute authorizing a sheriff to appoint a deputy, declares
that any bond or security taken by a sheriff from his deputy to indem-
nify such sheriff, shall be good and available at law. Wood et al. v.
Cook, 271.
2. Where a deputy sheriff executes a bond to his principal, for the
performance of " all the duties required of him as deputy sheriff,"
those words embrace all the duties which are by law devolved upon
the sheriff. Ibid. 271.
On appeals from justices, in forcible detainer. See APPEALS FROM
JUSTICES.
INDEX. 555
CASE.
When the action will lie.
1. An action on the case will not lie against a banker for failing to
pay over money collected by him in that capacity, for another. Tink-
ham <& Co. v. Heyworth, 519.
2. But if an attorney should fail to pay over money collected, au
action on the case would lie against him to recover it. Ibid. 519.
3. Semble, that an action of trespass on the case will lie against the
clerk of a Circuit Court, who wrongfully approves an appeal bond which
provides a penalty less than is required by law. Billings v. Laferty,
318.
CAVEAT EMPTOR.
The rule of caveat emptor applies to a sheriff's sale of land under
foreclosure of a mortgage by scire facias. Walbridge v. Day et al. 379.
CHANCERY.
Jurisdiction.
1. Contested elections. A court of chancery has no jurisdiction to
inquire into the validity of elections. Moore v. Hoisington et al. 243.
2. Nor will such jurisdiction be conferred by the mere omission
of the particular case from the operation of the general law on the
subject of contested elections. Ibid. 243.
3. Release of surety. If the holder of a promissory note extend the
time of payment to the principal maker, without the assent of the
surety, the latter may avail himself of the release thereby occasioned ,
in equity, whether the fact of suretyship appear on the face of the
note or not. Kennedy et al., Ex'rs, etc., v. Evans, 258.
Creditors' bills.
4. A court of equity will not intervene by way of injunction, or
otherwise, in behalf of a simple contract creditor, upon the ground that
his debtor has made a fraudulent transfer of his property. An equitable
attachment is not known to our law. Bigelow et al. v. Andress etal. 322.
5. A party who has simply commenced his suit at law by suing out
an attachment, and procured a service of garnishee process upon the
fraudulent grantee of the debtor, stands in no better position to invoke
the aid of a court of chancery to preserve the property in the hands of
the garnishee, than he would if he had not sued out his attachment ;
he is still a mere simple contract creditor. Ibid. 322.
6. As a general rule, a creditor must first reduce his debt to a judg
ment before he can resort to a court of equity for aid in its collection.
If he desires a fraudulent obstruction removed, or to subject an equi
table estate, not liable to sale on execution, he must first exhaust his
legal remedies, by obtaining a judgment, and a return of nulla bona,
before a court of equity will afford such relief. Ibid. 322.
7. Ordinarily, an execution must issue on a judgment, and be
returned unsatisfied, before a resort to a court of equity to reach real
estate in which the judgment debtor has not such an interest as might
be sold on execution. Bay et al. v. Cook, 336.
8. Yet in proceedings against intestate estates, which are insolvent,
a resort to equity may be had without this preliminary, as our statute
does not permit an execution to be issued upon a judgment against an
administrator. Ibid. 336.
S56 INDEX.
CHANCERY— Continued.
Compelling executor to sell land to pay debts.
9. Where a testator gave his executors discretionary power to seD
lands, and no purpose is expressed for the application of the proceeds,
if it be necessary to resort to the lands to pay debts, a court of chancery
may compel such of the executors appointed, as may qualify, to exer-
cise the power of sale, and apply so much of the proceeds as is neces-
sary, to payment of the debts. Wardwell v. McDowell et al. 364.
Impeachment op judgment, for error.
10. If a judgment at law is in full force, and rendered by a court
of competent jurisdiction, and no fraud in obtaining it is alleged, its
validity cannot be inquired into in a court of chancery. However
erroneous it may be, it must have full force, until it is reversed. Bay
et al. v. Cook, 336.
Pleading in chancery.
11. Averment. Where it is alleged in a bill in chancery that the
complainant's claim against an estate is allowed to the amount of $6,000,
and over, and that the executor claims to have filed a full and perfect
inventory, which amounts to only $115, that is a sufficient averment of
the insolvency of the estate. Bay et al. v. Cook, 336.
12. Multifariousness. Where the State's attorney joins with another
person in exhibiting their bill, the former seeking to compel the county
to execute certain alleged trusts devolving upon it by the conveyance
of the swamp lands by the State to the county, while his co-complain-
ant bases his claim to relief upon a contract, and purchase of these
lands of the county, which he alleges should be discharged in labor,
the bill is multifarious. Supervisors of Whiteside Co. v. State's Attor-
ney, etc., et al., 68.
13. Bad, on general demurrer. Multifariousness may be taken
advantage of, on general demurrer. Ibid. 68.
Relief against a judgment by confession. See POWER OF AT-
TORNEY TO CONFESS JUDGMENT.
Decree — void for uncertainty. See DECREE.
Master in chancery. See that title, post.
CHURCHES AND CHURCH PROPERTY.
Church rights.
Civil and ecclesiastical — by whom adjudicated. While the courts will
decide nothing affecting the ecclesiastical rights of a church ; yet its
civil rights to property are subjects for their examination, to be deter-
mined in confoimity to the laws of the land, and the principles of equity.
Ferraria et al. v. Vasconcellos et al. 25.
Ceurch property — how affected by divisions in churches and
departure from doctrine, etc. See title TRUSTS, post .
CITY OF AMBOY. Its powers.
The City of Amboy has authority, under its charter, to pass ordi
nances to punish a party committing an assault and battery. City of
Amboy v. Sleeper, 499.
COLLECTOR OF" TAXES. See SHERIFF.
INDEX. 557
CONFESSION OF JUDGMENT. See POWER OF ATTORNEY TO CON-
FESS JUDGMENT.
CONFLICT OF JURISDICTIONS.
State and Federal Courts.
1. In an action of trover brought in a State court by a United States
marshal, to recover the possession of personal property which he claims
by virtue of a levy made by him under an execution issued out of a
Circuit Court of the United States, it is competent for the State court
to decide upon the validity of such levy. Davidson v. Waldron et al. 120.
2. So in ejectment brought in a State court, where a party claims
title by virtue of a sale of the premises under an execution issued out
of the District or Circuit Court of the United States, the validity of the
execution, and of the proceedings under it, are a fair subject of investi-
gation and adjudication by the State court. Ibid. 120.
CONSIDERATION.
What is sufficient.
1. A sale and delivery of personal property is a good consideration
for a note given therefor, although the seller had no title. Linton v.
Porter, 107.
2. The fact that an assignee receives the instrument in payment of
a preexisting debt due him from the assignor, can make no difference
in his right to a recovery upon it. He is the assignee for a valuable
consideration, and entitled to all the rights of such. Foy v. Blackstone,
538 ; Gonkling v. Vail, 166.
3. If a consideration be paid upon the conveyance of land, though
it be disproportioned to the value of the land, it will still support the
deed. Perley v. Cattin, 533.
4. Where a person leased premises to be used as a boarding house,
and by reason of occurrences subsequent to the leasing, a right to sue
the lessor for damages occasioned thereby, for loss of business or
otherwise, has arisen, such a right of action would be waived by a new
agreement between the lessor and lessee in regard to such leasing ; and
this would be a sufficient consideration for the new agreement. White
v. Walker, 422.
5. Remaining in the house was a detriment to the lessee, under the
circumstances, and this would be a good consideration for a new agree-
ment between him and his lessor. Ibid. 422.
6. Where, after the death of the lessee, the lessor made a new agree-
ment with the widow of the lessee, upon whom no obligation rested,
as the widow, to continue in possession, and at a less rent than was
originally reserved ; it being of interest to the lessor that the premises
should be occupied, and the condition of the premises having become
such, after the original leasing, that it would likely be difficult to pro-
cure a tenant, would constitute a sufficient consideration for this new
agreement. Ibid. 422.
7. The question in such case is not, what was the amount of consid
©ration for the new agreement, but, was there any consideration at alL
Ibid. 422.
558 INDEX.
CONSIDERATION. What is sufficient. Continued.
8. A mere moral obligation to pay for service rendered, cannot be
enforced at law. Bull, adm'r, etc. v. Harris, 487 .
9. If a party, being indebted to one, is induced by false representa-
tions to execute his note to another, for such indebtedness, the note is
without consideration. Gonkling v. Vail, 167.
Want of consideration.
10. When pleadable. A purchaser of personal property to which the
seller had no title, cannot, while he retains the possession of the prop-
erty, defeat a recovery upon the note, upon a plea of want of consider-
ation. Linton v. Porter, 107.
Whether pleadable against assignee. See ASSIGNMENT— ASSIGNOR —
ASSIGNEE, 10, 11.
See ESTOPPEL, 1, 2.
CONSTITUTIONAL LAW.
Imprisonment — power of justices of the peace and police magistrates. See
IMPRISONMENT.
CONTINUANCE.
Requisites of affidavit.
1. Upon an application for the continuance of a cause on the ground
of absence of material witnesses, the affidavit, without showing any
diligence in trying to procure their attendance, set forth that the wit-
nesses enlisted as private soldiers in the army of the United States, at
a given time, and were still in the service, and had ever since their
enlistment, been absent from the county. This was not enough ; it
should have been shown where the witnesses were at the time the
application was made, so that the court could know that they were not
within its jurisdiction.
The affidavit should show, either that efforts had been made to pro-
cure the attendance of the witnesses, or that such efforts would have
been ineffectual for that purpose. Richardson v. The People, 170.
2. The affidavit should also show that there is a reasonable prospect
of obtaining the testimony of the witnesses at some future time. Ibid.
170.
In what cases allowed.
3. In a case of prosecution under the Bastardy Act, if it appear that
the attendance of material witnesses on the part of the defendant can-
not be procured, and that due diligence has been employed, he may
offer to join in a commission with the opposite party to take theii
depositions ; and if such offer be not accepted, the court, in its discre*
tion, may grant continuances from term to term, until the other party
will join in the commission. Richardson v. The People, 170.
4. If in such case, the commission be joined in by both parties,
then the court will continue the case until the next term. Ibid. 170.
See WITHDRAWING A JUROR.
INDEX . 559
CONTRACTS.
By what laws governed.
1. The laws in operation at the time a contract is made, enter into,
and form a part of, the contract ; and a subsequent repeal of such laws
will not affect the rights and liabilities of the parties as thereby
originally fixed and determined. Matthias et al. v. Cook, 83.
2. This rule applies to laws which declare a forfeiture as between
parties who enter into an usurious contract. Ibid. 83.
Construction of contracts.
3. A warehouseman " received in store from Walker & Kellogg, and
subject to their order, and free of all charges on board their boats, or
any boats they may send for the same, thirty thousand bushels shelled
corn." Held, that the warehouseman was bound to store the corn free
of charge, only for a reasonable time. And if boats were not sent for
the corn within such time, he would be entitled to compensation for
storage, and for any extra labor in delivery occasioned by the delay.
Myers et al. v. Walker, 353.
4. If a party employs another to purchase corn for him, and
advances him money for that purpose, it is none the less a compliance
by the party thus employed, with his contract to purchase corn for his
employer, because he did not pay for the corn with the identical
money advanced to him for the purpose. Ibid. 353.
Acts incorporating private corporations, are contracts.
5. The act to incorporate the Illinois CeDtral Railroad Company,
which declares cerioin exemptions of the property of the company
from taxation, is a contract between the State and the company, which
cannot be changed or annulled without the consent of both contracting
parties. Neustadt et al. v. Illinois Central Railroad Co. 484.
CONVEYANCES.
Conveyance of land in adverse possession.
1. Character of right which passes. The conveyance of land while
in the adverse possession of another, although it is valid under our
statute for the purpose of passing all the rights of the grantor, does
not operate to arrest the running of the statute of limitations which
had, prior to the conveyance, commenced to run against the grantor.
The effect of such conveyance is simply to invest the grantee with all
the rights of the grantor precisely as he then held them. Shortall v.
Hinckley et al. 219.
By an attorney.
2. Must be in the name of the principal. A mortgage contained a
power of sale authorizing the mortgagee, his personal representa-
tives or assigns, to sell the premises, and as the attorney of the mort-
gagor, to execute deed to the purchaser : Held, that the assignee of
the mortgagee could only convey the title as the attorney of the mort-
gagor, and by using the name of his principal in the conveyance ; a
deed made by the assignee in his own name as grantor, was held not
to pass the title. Speer v. Hadduck, 439.
By master in chancery. See MASTER IN CHANCERY.
By assignee in bankruptcy. See BANKRUPTCY, 6, 1, 8.
Of estate by the curtesy — by whom. See CURTESY.
Of homestead right. See HOMESTEAD EXEMPTION.
560 INDEX.
COPARTNERSHIP. See PARTNERSHIP.
COPY OF DEED.
When admissible in evidence. See EVIDENCE.
CORPORATIONS.
Their organization cannot be attacked collaterally. See EVIDENCE,
Defects in their organization.
1. How remedied. Irregularities or defects in the organization
of a railroad corporation, may be cured by subsequent legislation.
Illinois Grand Trunk R. R. Go. v. Cook, Adm'r, etc., 29 111. 241. Good
rich v. Reynolds, Wilder & Go. 490.
Municipal corporations.
2. Where their debts are payable. Municipal corporations cannot
bind themselves to pay their indebtedness at any other place than at
their treasury, unless specially authorized by legislative enactment
Gity of Pekin v. Reynolds, 529.
3. Whether liable for interest. See INTEREST.
Private corporations.
4. Acts creating them are contracts. See CONTRACTS, 5,
COSTS.
On withdraw ing a juror. See WITHDRAWING A JUROR.
COUNTY.
In what manner to be sued.
1. A cornty has not the capacity to be sued except it is conferred by
special statute ; and when that capacity is so conferred, the mode
pointed out by the statute must be strictly pursued. County of Rock
Island v Steele, 543.
2. Counties which have adopted township organization, can be sued
only in the name of the board of supervisors. Ibid. 543.
In what courts to be sued. See JURISDICTION.
Execution cannot be awarded against it. See EXECUTION.
Service of process on a county. See PROCESS.
COURTS.
Court of common pleas of aurora.
1. The Court of Common Pleas of the city of Aurora has no juris-
diction of a suit against the county of Kane, in which that city is
situated. Board of Supervisors of Kane county v. Young et al. 194.
2. The concurrent jurisdiction of that court with the Circuit Court,
is only co-extensive with the city limits of the city of Aurora. Ibid.
194.
Courts of record. See PROBATE COURT.
-^EDITORS' BILLS. See CHANCERY.
tlMINAL LAW.
'/* ^SLAUGHTER.
Penalty on conviction. Under the 29th section of the criminal code,
» party convicted of the crime of manslaughter might be punished by
imprisonment in the penitentiary for a term less than one year. But
the act of 1859 on that subject, repealed the 29th section of the crim-
inal code in that regard, and under its provisions the jury cannot fix
the time of imprisonment for such offense at less than one ye*r.
Mullen v. The People, 444.
INDEX. 561
CRIMINAL "LAW — Continued.
Of evidence in criminal cases.
Proof of good character of accused. See EVIDENCE.
Proof that accused had committed another offense. See EVIDENCE.
Burthen of proof in criminal cases.
In regard to insanity of accused. See EVIDENCE.
Reasonable doubt of sanity of accused, acquits. See EVIDENCE.
Of insanity as a defense. See INSANITY
Mittimus. See that title, post.
Holding to bail — former holding, no bar. See BAIL.
What acts may be done on Sunday. See SUNDAY.
CURTESY.
Estate by the curtesy — its incidents and character.
. 1. The interest of a tenant by the curtesy is a vested legal estate,
distinct from that of the wife, and is liable to all the incidents of any
other freehold or life estate ; it is subject to sale under execution, or
by himself, or he may lease it to the extent of the whole, or any part
of the term. Shortall v. Hinckley et al. 219.
2. And if he were to convey or lease his interest, the title of the
grantee or lessee would not be defeated by a subsequent conveyance of
the whole estate by the husband and wife ; such subsequent convey-
ance would only pass the wife's remainder. Ibid. 219.
3. Nor can the grantee who thus has title only to the wife's remain-
der, maintain ejectment against the original grantee or lessee of the
tenant by the curtesy, during the lifetime of the latter. Ibid. 219.
4. So, as in this case, if a grantee of husband and wife, of the
wife's lands, bring ejectment during the husband's lifetime, against
one in adverse possession, and it appear that the husband's right as
tenant by the curtesy, is barred by the statute of limitations, the whole
action will be defeated. Ibid. 219.
5. But, no doubt, after the death of the husband, the life estate
having expired, such grantee may recover the fee which was in the
wife, that not being barred. Ibid. 219.
6. The husband may convey his interest, as tenant by the curtesy,
without his wife joining in the conveyance. Ibid. 219.
7. Nor need she join with her husband in a suit to recc ver kil pot
session, or for damages sustained by trespass. Ibid. 219.
DAMAGES. See MEASURE OP DAMAGES.
DECLARATIONS.
When admissible in evidence. See EVIDENCE.
DECLARATION — PLEADING.
Time of filing declaration. See PRACTICE.
Defective declaration. See ARREST OF JUDGMENT.
71— 31st III.
562 INDEX.
DECREE.
Void for uncertainty.
In a suit to enforce the specific performance of a contract in regard
to the division of a tract of land between two joint owners, the decree
gave a certain specified portion first to one party, and then also decreed
the same portion to the other party, and making no disposition of the
residue of the tract. Held, the decree was void for uncertainty. Welch
v. Louis et al. 446.
To enforce mechanics' lien. See MEGHANICS' LIEN.
In bankruptcy. See BANKRUPTCY, 1, 2.
DEED OF TRUST.
Foreclosure. See TRUSTS AND TRUSTEES.
DELIVERY.
Delivery of promissory note, essential to its 'validity. See BILLS OF
EXCHANGE AND PROMISSORY NOTES, 9.
DEMAND.
When necessary.
In an action on a note given upon a subscription to the stock of a
railroad company, the defendant pleaded that no demand had been
made of the amount of stock subscribed. Held, the company were
under no obligation to make such demand. Goodrich v. Reynolds,
Wilder & Co. 490.
See ATTORNEY AT LAW, 5 ; INTEREST.
DEMURRER.
Of the office of a demurrer.
1. If a plea is insufficient in form or substance, the only mode of
taking advantage of the defect is by demurrer. Orne v. Cook, 238.
General demurrer.
2. When availing. Multifariousness in a bill in chancery may be
taken advantage of on general demurrer. Supervisors of Whiteside
County v. State's Attorney, etc., et al. 68.
3. What it admits. A general demurrer to a bill in chancery admits
all the facts therein stated, to be true. Moore v. Boisington et al. 243.
Demurrer to plea.
4. When it will not be carried back to the declaration. Where a plea
of the general issue is put into the whole declaration, a demurrer to a
special plea cannot be carried back to the declaration. Schoficld v.
Settley et al. 515.
DEPOSITIONS.
In cases of misdemeanors.
1. In cases of misdemeanors, the depositions of absent witnesses
may be taken by consent. Richardson v. People, 170.
2. So in a case of prosecution under the Bastardy Act, if it appear
that the attendance of material witnesses on the part of the defend-
ant cannot be procured, he may offer to join in a commission with the
opposite party to take their depositions ; and, it appearing that due
diligence has been employed, if such offer be not accepted, the court,
in its discretion, may grant continuances from term to term, until the
other party will join in the commission. Ibid. 170.
INDEX. t>63
DEPOSITIONS. In cases of misdemeanors. Continued.
3. If, in such case, the commission be joined in by both parties,
then the court will continue the cause until the next term. Richardson
v. People, 170.
DEPUTY SHERIFF. See SHERIFF.
DISCRETION. See WITHDRAWING A JUROR.
EJECTMENT.
Equitable title.
1. An equitable title forms no bar to a recovery in ejectment. In
that action legal rights alone can be considered. Wales et al. v. Bogus,
465.
Recovery op part op the premises.
2. Where the homestead right is set up as a defense in ejectment, and
there is a part of the premises sought to be recovered to which the
right does not attach, such part may be recovered in the same action.
Pardee v. Lindley, 174.
Assignee of mortgage.
3. An assignee of a mortgage cannot recover the premises in eject-
ment, where he claims to be the owner in fee simple. Speer v. Mad-
duck, 439.
Op the evidence.
4. Where both parties derive title from the same source. If the defend-
ant in ejectment and the plaintiff claim title from the same source, it is
not necessary for the latter to trace his title further, in the first instance.
Holbrook v. Brenner et al. 501.
5. When the plaintiff exhibits a title from the same source, better
than that of the defendant, it is sufficient to put him upon his defense.
Ibid. 501.
6. The defendant may, however, show that he claims under a dif-
ferent title, or, he may show a paramount outstanding title, to defeat
a recovery. Ibid. 501.
7. Evidence of defendants claim of title. In ejectment, where it
appears that the defendant has purchased the premises by deed, and is
in possession of the premises, it is prima facie evidence that he claims
under that title. Ibid. 501.
8. As to the admissibility of deeds, etc., and copies thereof, Bee EVI-
DENCE.
To recover estate by the curtesy, and herein of remedy of grantee
of husband and wife, when the husband's interest is barred by limita-
tion. See CURTESY.
Homestead right as a defense. See HOMESTEAD EXEMPTION.
ELECTIONS,
Contested elections — jurisdiction,. See CHANCERY.
ERROR.
Will not always reverse.
1. Where a party has been convicted of a criminal offense, the
judgment will not be reversed because of the improper admission of
proof of the expressions of a third person, made, out of the presence of
the accused, relative to his guilt ; or that an officer had sent a message
that the accused, who had committed the crime, was in jail, if it ap-
pear from the whole case, that justice has been done, and that the
error did not operate to the prejudice of the prisoner. Clark v. Tht
People, 479.
564 INDEX.
ERROR. Will not always reverse. Continued.
2. A just judgment will not be reversed, merely because a leading
question is allc wed to be answered, although it may be error. BuUon
et al. v. The Feople, 409.
What constitutes error.
3. Defective declaration. If a declaration be so defective that it
will not sustain a judgment, that may foe taken advantage of, on a
motion in arrest of judgment, or on error. Scho field v. Settley et al. 515.
4. Suing county by wrong name. If a county which has adopted town-
ship organization is sued by any other name than that of the Board of
Supervisors, it is error, and there is no necessity for a plea of misno-
mer, as in ordinary cases. County of Rock Island v. Steele, 543.
6. Misjoinder of parties. Should the administrator of a deceased
obligor, upon a several, or joint and several bond, be sued jointly with
the survivor, the misjoinder would be bad on error. Eggleston et al. v.
Buck, 254.
When objection must be first taken.
6. It cannot be objected for the first time in the Supreme Court, that
a jury empanneled to assess damages, were sworn " to try the issues,"
when the party objecting was present and contested the assessment,
and took a bill of exceptions. He should have objected then to the
form of the oath, so that the proper oath could have been adminis-
tered. Edwards et al. v. Edwards et al. 474.
ESCROW.
Promissory note.
Like deeds, promissory notes can be delivered as escrows, to take
effect only upon the happening of a certain event. Foy v. Blackstone, 538.
&STOPPEL.
1. In an action against a guarantor to recover rent reserved in a
lease, the defendant set up as a defense certain new agreements be-
tween the lessor and the lessee, and with the widow of the lessee, and
it was held, that even if there was no consideration for such new
agreements, still, they having been executed, and the guarantor on the
original lease having thereby been led into a line of conduct which
must be prejudicial to his interests, by the admissions of the lessor, as
in declining an indemnity from the lessee, an equitable estoppel arises
which will prevent a recovery against the guarantor. White v. Walker ,
422.
2. The rule seems to be, that a promise to forgive a debt, or to for-
bear its collection, if either temporarily, or for an indefinite period,
unsupported by any consideration, though ineffectual as a defense,
viewed merely as an agreement, yet if the surety has been induced by
such an assurance, to neglect any of the means which might have been
ased for his indemnity, the promise may have that effect as an estop-
pel, which it wai/i>s as a contract, and amount to a defense against any
subsequent act:*on brought by the creditor. Ibid. 422.
INDEX. 565
ESTOPPEL— Continued.
3. Where an administrator accepted from a debtor of the estate a
mortgage upon land of which the intestate died seized in fee simple,
and the title to which had fully vested in the heirs by descent ; and a
foreclosure and sale of the premises was had under the mortgage, it is
held, such proceedings on the part of the administrator did not operate
to estop a subsequent administrator of the same estate from purchas-
ing the title of the heirs to these premises, and holding it, at least
against the right of purchasers derived under such mortgage. Wal-
bridge v. Bay et at. 379.
See POWER OF ATTORNEY TO CONFESS JUDGMENT.
EVIDENCE.
Of what the courts take judicial notice.
1. The Supreme Court will take judicial notice of the fact that a
county has adopted township organization. County of Rock Island v.
Steele, 543.
Parol evidence.
2. When a note is delivered as an escrow, to take effect on the hap-
pening of a certain event, whether such event has occurred may be
proven by parol. Foy v. Blackstone, 538.
3. But parol proof must not go to the extent of varying the terms of
a note absolute on its face, showing that though on its face, it was
given for one purpose, yet in fact, it was given for a different purpose.
Ibid. 538.
4. The rule is well settled, that the maker of an absolute note can-
not show against the payee, and, a fortiori, not against any indorsee,
an oral contemporaneous agreement which makes the note payable on
a contingency. Ibid. 538. •
5. Parol evidence would, however, be admissible to impeach the con-
sideration of the note, or to show fraud in the transaction. Ibid. 538.
6. Proceedings before the probate court as it existed under the act of
March 4th, 1837, in reference to the proof of the execution of a will,
refusal of part of the executors named, to accept and qualify, and
granting letters testamentary to one who did accept, were of a ministe-
rial character, and as such can be proved by other than record evidence.
Wardwell v. McDowell et at. 364.
7. All ministerial acts are in pais — open to the country — and to be
established by parol proof. Ibid. 364.
8. So, where three executors were appointed by will, giving them
power to sell real estate of the testator, and only one of them qualified,
who sold and conveyed the lands, the other two refusing to accept the
trust and qualify, it was held such refusal might be proven by parol
evidence. Ibid. 364.
9. And it seems, in such case, it might be inferred from the neglect
of one or more of several executors appointed in a will, to join in the
execution of the trust, that they had refused to accept it and to qualify.
Ibid. 364.
10. Where it appears that a written instrument has been destroyed
by fire, it is competent to prove its contents and execution by parol
Orne v. Cook, 238.
566 INDEX.
EVIDENCE. Parol evidence. Continued.
11. If a surety upon a promissory note, seeks relief, either in equity
or at law, upon the ground that he is released by an extension of the
time cf payment to the principal, without his assent, he may establish
the fact of his suretyship by evidence aliunde, if it does not appear
from the face of the note itself. Kennedy et al., Ex'rs, etc., v. Evans, 258.
12. A witness being examined upon his voir dire, stated that a cer-
tain party had recovered a judgment against him upon a matter which,
it was considered, had relation to his interest in the suit in which he
was called to testify ; and this was taken as competent proof that such
a judgment was obtained. Babcock etal. v. Smith et al. 57.
Of the discharge op sealed instruments by parol. See SEALED
INSTRUMENTS.
Secondary evidence, generally.
13. Certified copy of deed. A certified copy from the record, of a deed,
is admissible in evidence, upon the affidavit of the proper person, that
the last he knew of the original deed, it was in his possession, but is
lost ; that he had made diligent search therefor, in the place where it
ought to have been, and in places where it was probable it might have
been, in good faith, with a view of finding it, but was unable to find or
produce it. Pardee v. Lindley, 174.
14. Preliminary prooj \ by whom made. Where the deed, of which a
copy is sought to be given in evidence, was made to an antecedent
grantee, the preliminary proof of the loss of the original deed may be
made by such grantee, although he be not a party to the suit, or his
agent or attorney. Ibid. 174.
Attacking judgment collaterally.
15. For irregularity. Where a judgment is simply irregular, but
not void, it is sufficient in a collateral proceeding, as in ejectment;
where a party derives title under a sale on execution issued upon such
judgment. Wales et al. v. Bogue, 464.
Organization op corporations.
16. Cannot be attacked collaterally. The organization of a railroad
company cannot be attacked collaterally, as, in an action by an assignee
upon a promissory note executed to such company. Goodrich v. Rey-
nolds, Wilder <& Co. 490.
Res gestae.
17. Declarations of party. In trespass quare clausum fregit by the
owner of the land, the defendant set up his occupancy of that portion of
the premises upon which the alleged trespass was committed ; the plain-
tiff endeavored to show an abandonment of such occupancy, by the de-
fendant having moved offthe fencing, etc., and it was held competent to
prove the declarations of the defendant in that regard at the time he was
removing the fence, as a part of the res gestm. Welch v. Louis et al. 446.
18. Expressions of third persons. It is not competent, on the trial of
• a party charged with crime, to prove the expressions of a third person,
made, out of the presence of the accused, relative to his guilt ; nor to
show that an officer had sent a message that the accused, who had conr
mitted the crime, was in jail. Such matters are no part of the rem
gestm. Clark v. The People, 479.
INDEX. 567
EVIDENCE —-Continued.
Settlement op accounts.
19. Evidence that everything was included. An adjustment and set-
tlement of accounts between parties, afford evidence that all items
properly chargeable at the time, were included. This is not conclu-
sive, but it would require clear and convincing proof that such items
were unintentionally omitted by the party subsequently claiming to
recover them. Bull, Adm'r, etc., v. Harris, 487.
In ejectment.
20. To support a deed under power of sale in mortgage. Where the
plaintiff in ejectment claims under a deed executed in pursuance of a
sale made by a mortgagee under a power of sale contained in the mort-
gage, it is not necessary to give in evidence the note which was secured
by the mortgage. Pardee v. Lindley, 174.
21. Of evidence in ejectment. See EJECTMENT.
Leading questions.
22. Where the answer to a leading question which is objected to,
does no injury to the party objecting, he cannot complain as to the
leading form of the question. Bulson et al. v. The People, 409.
In criminal cases.
23. Proof of good character in capital cases. Upon the trial of a
party on the charge of murder, where the defense is insanity, it is
competent for the defendant to give in evidence his uniform good
character as a man and a citizen. Hopps v. The People, 385.
24. And it seems such evidence is admissible on the part of the
defendant, in capital cases, generally. Ibid. 385.
25. Proof that accused had committed another offense. As a general
rule, when a party is on trial upon a charge of murder, it is not com-
petent for the prosecution to prove that years previously he had com-
mitted another offense, as, violating the revenue laws by smuggling.
The proof should have no reference to any of the prisoner's conduct,
not connected with the charge upon which he is being tried. Ibid. 385
26. Exception to the above rule, dependent upon the defense. But
where the defense is insanity, and the coolness and unconcern of the
prisoner at the time he committed the homicide are relied upon as justi-
fying inferences favorable to the plea, it is competent to show that the
prisoner had been in early years engaged in the perilous calling of
smuggling, as tending to rebut the inference that his deportment on
the fatal occasion was attributable to a want of sanity. Ibid. 385.
Burthen op proof in criminal cases.
27. In regard to insanity of accused. When a defendant who is being
tried upon a criminal charge, sets up insanity as an excuse for the act,
he does not thereby assume the burthen of proof upon that question.
Such a defense is only a denial of one of the essential allegations against
him. Mr. Justice Walker, dissenting. Hopps v. The People, 385.
568 INDEX.
EVIDENCE — Continued.
Reasonable doubt op sanity op accused, acquits.
28. And in sustaining such a defense, it is not necessary that the
insanity of the accused be established even by a preponderance of
proof ; but if, upon the whole evidence, the jury entertain a reason-
able doubt of his sanity, they must acquit. Qualifying the rule in
Maker's case, 23 111. 293. Mr. Justice Walker, dissenting. Hopps v.
The People, 385.
Op the competency of evidence under certain issues. See
PLEADING AND EVIDENCE.
Variance — allegations and proofs. See same title.
Op the purpose op introducing certain evidence — who thaU
determine. See INSTRUCTIONS.
EXECUTION.
Cannot be awarded against a county.
It is erroneous to award an execution against a county, in a decree
in chancery, as well as in a judgment at law. King et al. v. McBrmc
et al. 418.
Nor can it be awarded against an administrator. See EXECU
TORS AND ADMINISTRATORS.
Sales on execution — divisibility op property. See SALES.
Whether it must issue before imprisonment for non-payment
of a fine. See IMPRISONMENT.
Exemption. See HOMESTEAD EXEMPTION.
Levy of execution.
What constitutes a valid levy. See LEVY.
Levy vests title in officer. See SHERIFF.
EXECUTORS AND ADMINISTRATORS.
When a part only of several executors, qualify.
1. Their powers, under the common law. At the common, law, a
naked power which is given to several , such as that conferred upon
executors by will, to sell and convey the real estate of the testator, not
coupled with any interest in the estate, can only be exercised by the
joint action of the donees of the power. Wardwell v. McDowell et al. 364.
2. The power does not survive, at common law, in case of the death
of one of the donees. Ibid. 364.
3. So in the execution of a will, when one named with others as
executor, refused to accept and qualify, the others could not execute
the will. Ibid. 364.
4. Their powers under act of 21 Henry Till. To obviate this diffi-
culty, the act of 21 Henry VIII, ch. 4, was passed, and is in force in
this State, which provides that the qualified and acting executor may
execute the will when the others " do refuse to take upon him or them
the administration and charge of the same testament and last will
wherein they be so named as executors." Ibid. 364.
INDEX. 569
EXECUTORS AND ADMINISTRATORS.
When a part only of several executors, qualify. Continued.
5. And where power is given in the will to several executors to sell
real estate, whether the lands are ordered to be sold peremptorily, ot
the executors may exercise a discretion in selling, makes no difference
in the application of the act cited. In either case the executor who
qualifies may act, the others refusing to do so. WardweM v. McDowell
et al. 364.
Of the powers of an executor, generally.
6. Whatever an executor may be compelled to do by a court of
chancery, he may do voluntarily. Ibid. 364.
7. So where a testator gave his executors discretionary power to
sell lands, and no purpose is expressed for the application of the pro-
ceeds, if it be necessary to resort to the lands to pay debts, a court of
chancery may compel such of the executors appointed, as may qualify,
to exercise the power of sale, and to apply so much of the proceeds as
is necessary, to payment of the debts. Then the executor may do the
same voluntarily. Ibid. 364.
8. The manner of the application of the proceeds by the executor,
cannot affect the power to sell ; the purchaser is not bound to see to
their application. Ibid. 364.
9. Where power is given to executors, by will, to sell real estate,
without expressing any purpose in the disposition of the proceeds of
the sale, the power is regarded a mere naked power, and not a power
coupled with an interest or trust. Ibid. 364.
Control of administrator of lands of the estate — and herein
how far his acts may affect the title of the heirs.
10. The title to the land of an intestate does not vest in his admin-
istrator as a trustee, but descends directly to the heirs. Walbridge v.
Day et al. 379.
11. An administrator cannot affect the title of the heirs to their
real estate, descended to them from the intestate, except by a sale
authorized by an order of court. They hold the title in their own
right, and only subject to the payment of the debts of their ancestor,
in the mode prescribed by law, and not subject to any other control of
the administrator. Ibid. 379.
12. So, where an administrator accepted from a debtor of the estate
a mortgage upon land of which the intestate died seized in fee simple,
and the title to which had fully vested in the heirs by descent ; and a
foreclosure and sale of the premises was had under such mortgage, n
was held, that these proceedings on the part of the administrator,
while they were an admission by him that the mortgagor had some
title in the premises, in no wise affected the title of the heirs which
they took by inheritance. Ibid. 379.
13. The administrator has no power to admit away the title to rea'.
estate which is held by heirs under the law of descents. Ibid. 379.
14. Nor would such proceedings on the part of the administrate*
operate to estop a subsequent administrator of the same estate from pur-
chasing the title of the heirs to these premises, and holding It, at least,
against the right of purchasers derived under such mortgage. Ibid. 379.
72— 31st III.
570 INDEX.
EXECUTORS, Etc. Control op administrator, etc. Continued.
15. All the title which would pass by the foreclosure and sale in
such case, would be the title which the mortgagor held in the premises.
The title or estate held by the heirs by descent, would not become
merged in that acquired by the administrator through the mortgage,
so as to pass their estate by the sale on the decree of foreclosure. Walr
bridge v. Bay et al. 379.
Administrator of surviving obligor.
16. When he may be sued. Where a contract is several, or joint and
several, the administrator of a deceased obligor may be sued at law in
a separate action. Eggleston et ah v. Buck, 254.
17. But not jointly with survivor. But the administrator cannot, in
such case, be sued jointly with the survivor. Ibid. 254.
Op judgment against them — award of execution.
18. It is error, in rendering a judgment against an administrator, to
award execution. The order should be, that the judgment be paid in
the due course of administration. Bull, Adm'r, etc., v. Harris, 487.
FORCIBLE DETAINER.
Of the bond on appeal from a justice — its penalty. See APPEALS
FROM JUSTICES.
FORECLOSURE.
Deed of trusts. See TRUSTS AND TRUSTEES.
FORMER RECOVERY. See BAIL.
FRAUD.
What constitutes fraud.
1. Partiality as between subscribers to stock. An agreement between
a railroad company and a subscriber to the stock of the company, that
the latter should not be required to pay his subscription until all the
stock was subscribed, and that if the road should not be built within a
certain time, he should not be required to pay it at all, would be a
fraud upon other stockholders who subscribed upon less favorable
terms ; and such an agreement ought not to be enforced. Foy v. Black-
stone, 538.
2. Misrepresentation. Where one who has been negotiating for the
purchase of land from the owner, before having consummated his con-
tract of purchase, falsely represents to another that he is agent for the
owner, and sells the land at a higher price than he knows he can buy
it for, and thereafter does obtain title and conveys to his vendee, his
misrepresentation about his agency does not constitute a fraud upon
his vendee. Merry man v. Bavid, 404.
3. If a conveyance of land is induced by false and fraudulent rep-
resentations made by a third person, who was not even authorized to
negotiate in reference to the subject of the conveyance, much less to
make the false representations, the grantee will not be held responsible
nor will hit title be affected thereby. Perley v. Catlin, 533.
INDEX. $71
FRAUD. What constitutes fraud. Continued.
4. So, in an action upon a promissory note given to a railroad com-
pany, a plea setting up that the note was given upon a subscription ,o
the stock of the company, and was induced by misrepresentations ox
the agents of the company as to the amount of stock then subscribed,
and the time within which the road would be completed, would be
defective if it omitted to allege that those who made the false repre-
sentations were authorized by the company to make them, and that
they knew they were false when made. Goodrich v. Reynolds, Wilder
& Co. 490.
5. Possession of personalty when sold. If a person sells personal
property and does not deliver it to the vendee, there being no agree-
ment in the bill of sale that the possession should remain with the
vendor, the sale will be deemed fraudulent as to creditors of the ven-
dor. Bay et al. v. Cook, 336.
6. Inadequacy of price. And where a party who was heavily in
debt sold personal property of the value of $500, for $50, the gross
inadequacy of the price for which the property was sold, was deemed
evidence of fraud as to creditors of the vendor. Ibid. 336.
HOW FAR IT VITIATES A CONTRACT.
7. Stock being subscribed in a railroad company, must be paid, not-
withstanding the giving of a note therefor was induced by misrepre-
sentations of the agents of the company, as to the amount of stock then
subscribed, and the time within which the road would be completed.
Goodrich v. Reynolds, Wilder & Co. 490.
Who has remedy against it.
8. If in the sale and conveyance of land, the vendor perpetrates a
fraud upon his grantee in respect to the title to the premises, the
remedy against the fraudulent grantor will not inure to a subsequent
purchaser from such grantee, so as to enable him to recover from the
fraudulent grantor the purchase money received by him. Walbridge
v. Day et al. 379.
Reviving an extinguished debt. See PAYMENT.
Advancement by parent to child. See ADVANCEMENT.
Possession of personalty, in case of levy of an execution. See LEVY.
GARNISHMENT.
When garnishee process may issue.
1. To authorize the issuing of garnishee process against one who is
supposed to be indebted to a defendant in execution, there must be a
return upon the execution, either in terms or in substance, of " no
property found. " Mich. Central R. R. Co. , Garnishees, etc., v. Keohane, 144
Interrogatories.
2. Until interrogatories are filed, and an opportunity afforded .o
answer them, a final judgment cannot be entered against a garnishee
Ibid. 144.
Whether a lien is created. See LIEN.
See INJUNCTION.
GIFT. See ADVANCEMENT
572 INDEX.
GROWING CROP.
Rights of purchaser under execution.
A purchaser of a growing crop, under execution, has a right to enter
upon the premises to gather the crop. In argn* in Davidson v. WcUd-
ron et al. 120.
GUARANTY.
HOW GUARANTOR RELEASED.
If a lessor of premises make a new leasing thereof to the same or
another lessee, during the term of a prior lease, a guarantor upon the
original lease would become thereby discharged from his liability.
White v. Walker, 422.
When notice is necessary to charge guarantor. See NOTICE.
3EIRS.
Of their title by descent.
1. The title to the lands of an intestate does not vest in his admin-
istrator as a trustee, but descends directly to the heirs. They hold the
title in their own right, and only subject to the payment of the debts
of their ancestor in the mode prescribed by law, and not subject to any
other control of the administrator. Walbridge v, Day et al. 379.
2. The title or estate held by the heirs by descent would not
become merged in a title acquired by the administrator through a mort-
gage to him from a debtor of the estate upon the same premises, so a«
tc pass their estate by a sale under a foreclosure of such mortgage.
. Ibid. 379.
See EXECUTORS AND ADMINISTRATORS.
HOMESTEAD EXEMPTION.
Of what the homestead may consist.
1. Where a householder has his dwelling-house upon a town lot
and is farming the lot, together with a tract of land adjoining, all ii
the same inclosure, it is competent for him to prove that the whoI<
premises constitute his homestead. Thornton v. Boyden, 200.
TO WHAT CHARACTER OF ESTATE IT MAY ATTACH.
2. Estate by the curtesy. Semble, a homestead right may attach to
lands of which the wife is the owner of the fee, the husband having
only an estate as tenant by the curtesy. Boyd v. Cudderback et al. 113.
OF THE MODE OF RELEASE.
3. Where a husband and wife execute a mortgage upon lands to
which a homestead right has attached, it is not enough, to pass such
right, that it is expressly released in the body of the deed ; it must
appear from the certificate of acknowledgment that the wife acknowl-
edged that she released this particular right, freely and voluntarily.
and without compulsion. Ibid. 113.
4. Where husband and wife execute a deed or mortgage upon their
homestead, in order that it shall operate as a release of their right
thereto, it must appear from the certificate of acknowledgment, that
the wife has specifically released her right to claim the benefits of the
homestead act. Smith v. Miller et ux. 157.
INDEX.
HOMESTEAD EXEMPTION. Of the mode op release. Continued,
5. Without it so appears, the deed or mortgage will be inoperative,
as a release of that right ; the signature and acknowledgment of the
wife to the release, is a condition to the alienation of the homestead
in all cases ; her release of the right of dower in the premises, will
not suffice. The case of Vanzant v. Vanzant, 23 111. 536, upon this
question, is approved. Smith v. Miller et ux. 157.
6. A deed of trust executed on the 5th of June, 1857, by a house-
holder and his wife, contained no words of release of the right of home-
stead of the grantors, and the certificate of acknowledgment only set
forth, that the wife relinquished her right of dower in the premises,
and had no desire to retract the same : Held, that the homestead right
of the grantors did not pass by the deed. Thornton v. Boy den, 200.
When homestead not released, what estate or right passes.
7. A deed of trust executed by a householder and his wife, con-
fers no right to the possession of the homestead, unless the wife
expressly release such right. Connor v. Nichols, 148.
8. Quaere, as to the rights of a mortgagee in the fee of lands which
constitute the homestead of the mortgagor, when the right of home-
stead does not pass. Boyd v. Cudderback et al. 113.
Against what sales protected.
9. Under acts of 1851 and 1857. The original act of 1851, was con-
fined, in its operation, to forced sales under j udicial proceedings ; but
the amendatory act of 1857, embraces not only forced judicial sales,
but all other cases or modes of alienation, involving the right to the
homestead. Ibid. 113.
10. Under the original act of 1851, relating to homestead exemp-
tion, the homestead was protected only against a levy and forced sale,
under the process or order of a court of law or equity, where it had
not been properly released. Pardee v. Lindley, 174.
11. But under the amendatory act of 1857, it is protected against all
sales, whether compulsory or voluntary ; and against all modes of con-
veyance, whether by deed absolute, or a mortgage, unless it shall be
released in the mode prescribed in the act. Ibid. 174.
Of the defense, or claim of homestead right.
12. Wlien and in what manner it may be interposed. The homestead
is a right cast upon the wife for her benefit, and that of her children,
of which she and they cannot be deprived in any other way than that
prescribed in the act itself. Ibid. 174.
13. Nor does the law require her or her husband to do any act to
secure this right. They are both passive, whilst the law silently but
effectually throws around them its protection. As long as the premises
are occupied as a homestead, a deed executed by the husband without
the release in the statutory mode, of the husband and his wife, can
have no effect to deprive them of the homestead. Ibid. 174.
14. In any action by which it is sought to deprive them of this
right, or to eject them from the premises to which the right attaches,
it can be interposed as a defense. Ibid. 174.
574 INDEX.
HOMESTEAD EXEMPTION.
Of the defense, or claim of homestead right. Continued.
15. The defense that the deed or mortgage does not operate as a
release of the right of homestead, may be interposed as a bar in an
action of ejectment against the grantors or mortgagors. Patterson v.
Kreig, 29 111. 514, approved. Smith v. Miller et ux. 157.
The same rule is held in Connor v. Nichols, 148, and in Thornton v.
Boy den, 200.
16. And the fact that the premises were of value exceeding one
thousand dollars, does not at all weaken the defense, as a bar to a
recovery in ejectment. Ibid. 157.
17. If a mortgage upon land contains a power of sale, the home-
stead right in the premises not being released, a court of chancery will
interpose by injunction to restrain the mortgagee from making sale of
the premises under the power contained in the mortgage. Boyd v.
Cudderback et al. 113.
18. Where a householder and his wife join in the execution of a mort-
gage upon premises in which they have a homestead right, but which
was not released in the mortgage, the mere omission on their part to
interpose their claim to that right as a defense to a bill to foreclose the
mortgage, will not operate as a waiver of such right. Hoskins v
Litchfield et al. 137.
19. So after a decree of foreclosure upon such a mortgage, sale of
the premises, and confirmation of the sale, without objection, the defend-
ants interposed a motion to set aside the decree of sale, and all pro-
ceedings under it, upon the ground that they held a homestead right in
the premises. The motion was granted, and correctly so. Ibid. 137.
20. It should be observed that it was agreed in the court below, that
the defendants should have all the relief by their motion, that they
could have had by bill in chancery or other proceeding. Ibid. 137.
Excess in value over one thousand dollars.
21. In what cases, and how made availing. Where lands to which
a homestead right has attached, are of value exceeding one thousand
dollars, a mortgage thereon will be operative and binding as to the
excess, although the homestead right may not have passed by the
deed. Boyd v. Cudderback et al. 113.
22. But the right of the mortgagee, in such case, to apply such
excess, must be enforced in the mode prescribed in the statute, on a
foreclosure of the mortgage, or on a judgment recovered upon the
debt. Ibid. 113.
23. Though a mortgage be inoperative to pass the homestead right,
yet if the premises are of greater value than one thousand dollars, it
is binding ; and uponforclosure, that excess may be reached by a divis-
ion, or, if the premises are indivisible, by a sale in the mode prescribed
by the statute. Smith v. Miller et ux. 157.
24. The fact that a homestead is of value of one thousand dollars,
will not at all weaken the defense when that right is set up as a bai
in an action of ejectment. Ibid. 157.
INDEX. 57£
HOMESTEAD EXEMPTION.
Excess in value over one thousand dollars. Continued.
25. Where it is set up as a defense, in ejectment, that the defend-
ant holds a right of homestead in the premises, the value of the prem-
ises is immaterial. Pardee v. Lindley, 174.
ILLINOIS CENTRAL RAILROAD COMPANY.
Exemption from taxes.
1. Under the act of February 10, 1851, incorporating the Illinois
Central Railroad Company, no city or town authority caD impose a tax
for municipal purposes, on the property of that company which may
be within its limits. Neustadt et al. v. Illinois Central R. R. Co, 484.
The act of incorporation was a contract.
2. The act to incorporate the Illinois Central Railroad Company,
which declares certain exemptions of the property of the company
from taxation, is a contract between the State and the company, which
cannot be changed or annulled without the consent of both contracting
parties. Ibid. 484,
IMPRISONMENT.
Power of justices of the peace and police magistrates.
1. Where the punishment is imprisonment. The police magistrate
of the town of Princeton is no more than a justice of the peace, and
would have no jurisdiction of an offense the punishment for which is
imprisonment ; it would be within the prohibition of the tenth section
of article thirteen of the constitution. Ex parte Bollig, 88.
2. As a means of collecting fines. But where the punishment
denounced is a fine, and the incidental power of imprisonment is only
given as a means of enforcing that punishment — as a mode provided
for collecting the fine — such case is not within the constitutional pro-
hibition mentioned. Ibid. 88.
3. So, it is held the town council of the town of Princeton, in
Bureau county, has the power, under the charter of the town, granted
by act of the General Assembly, approved February 18. 1857, to pro-
vide by ordinance, that any person who may be guilty of the breach of
an ordinance prohibiting the traffic in liquors, shall, " upon convic-
tion, forfeit and pay to the said town of Princeton, the sum of twenty-
five dollars for each and every offense, and be imprisoned in the county
jail of said county, until the fine and costs be paid." Ibid. 88.
4. Such a provision is not to be understood as denouncing imprison-
ment as the punishment ; power is given thereby to assess a fine only,
on conviction. The imprisonment is but a mode provided for collecting
the fine and costs. Ibid. 88.
5. It is not essential to the power to imprison in such case, that
there should first have issued a fieri facias, and an effort made in that
way to satisfy the fine out of the goods of the defendant ; but he may
be imprisoned at once, upon his refusal to pay the fine and costs. Ibid. 88
Discharge from imprisonment — how obtained.
6. If a party is imprisoned by reason of his failure to pay a fine
imposed by a police magistrate for a violation of a town ordinance,
and is unable to pay the fine, he may get relief under an equitable
construction of the 195th section of the criminal code. Ibid. 88.
576 INDEX.
INDEMNITY.
To a witness, as a means of restoring his competency. See WITNESS.
INJUNCTION.
1. To prevent sale of homestead. If a mortgage contain a power of
sale, the homestead right in the premises not being released, a court
of chancery will interpose by injunction to restrain the mortgagee
from making sale of the premises under the power contained in the
mortgage. Boyd v. Gudderback et al. 113.
2. Against a garnishee. A court of chancery will not interpose by
injunction to restrain a garnishee from selling or disposing of property
of the debtor in his hands, when the bill contains no allegation that
there is any danger of loss by reason of the insolvency of the gar-
nishee, before a trial could be had in the suit at law. Bigelow et al. v.
Andress et al. 322.
Action on injunction bond.
3. When the award of damages must be made. It is not essential, to
authorize a recovery upon an injunction bond, that the costs and dam-
ages should be awarded upon the dissolution of the injunction. A recov-
ery in an action upon the bond would be an award of damages within
the condition. Brown v. Gorton et al. 416.
To ENJOIN A JUDGMENT BY confession. See POWER OF ATTORNEY
TO CONFESS JUDGMENT.
INSANITY.
As A defense in criminal cases.
1. Of the character and degree that will acquit. Where a party who
is upon trial on an indictment for murder, interposes the defense of
insanity, the rule in regard to the character and degree of insanity
which would demand an acquittal, is thus laid down : that whenever
it shall appear from the evidence, that at the time of doing the act
charged, the prisoner was not of sound mind, but affected with insanity,
and such affection was the efficient cause of the act, and that he would
not have done the act but for that affection, he ought to be acquitted.
Eopps v. The People, 385.
2. But this unsoundness of mind, or affection of insanity, must be
of such a degree as to create an uncontrollable impulse to do the act
charged, by overriding the reason and judgment, and obliterating the
sense of right and wrong as to the particular act done, and depriving
the accused of the power of choosing between them. Ibid. 385.
See EVIDENCE, 23, 26, 27, 28.
INSTRUCTIONS.
Of what the court may instruct a jury.
1. In an action against a grantor upon a lease, for the recovery of
rent, whether a new agreement between the lessor and lessee, regard-
ing the terms of renting the premises, constitutes a waiver, or sur-
render of the original lease, and so intended by the parties, should be
left to the j ury . White v. Walker, 422.
2. It is erroneous to instruct a jury to disregard certain items in an
account, in regard to which evidence has been given ; it is the province
of the jury, not the court, to decide whether such items have been
proven. Myers et al. v. Walker, 353.
INDEX. 577
INSTRUCTIONS. Op what the court may instruct a jury. Continued,
3. The court may inform a jury what facts must be proved to sus-
tain a given issue, but cannot determine whether such facts have
been established; that is the province of the jury. Orne v. Cook, 238.
4. It is not proper for the court to instruct a jury for what special
and exclusive purpose certain evidence was introduced upon the trial
of a cause, when it could be legitimately applied to another and differ-
ent purpose. White v. Walker, 422.
INTEREST.
When recoverable, generally.
1. At common law, interest was not allowed in any case. It is th?
creature of the statute alone. City of Pekin v. Reynolds, 529.
2. Interest is recoverable as damages only, except when provided
for in the bond or agreement. No damages could result to a party
consenting to a postponement of payment, so no interest would be re-
coverable by the consenting party. White v. Walker, 424.
8. Although a lessee is bound to pay interest on installments of rent
from the time* they become due, when nothing has been done by the
lessor to prevent the regular payment of the installments, yet where
new agreements have been made, affecting the amount of rents and the
time of payment, even if such new agreements are not valid and binding,
for the want of a consideration, the lessor ought not to demand inter-
est, certainly not without a demand for the money, and then interest
from the time of the demand. Ibid. 424.
When demand is necessary.
4. If a coupon given for interest upon a bond executed by a city,
could, in any event, draw interest in the absence of an express agree-
ment, it could only be after a proper demand of payment. City of Pekin
v. Reynolds, 529.
5. Place of demand. And though the city may have made the cou-
pons, in terms, payable at another place than its treasury, yet, unless it
had express legislative authority so to do, it was still payable only at
the treasury, and the demand of payment should be made there. Ibid.
529.
Against whom recoverable.
6. But, there being no agreement on the subject, the city is not lia-
ble to pay interest upon its coupons, at all. Ibid. 529.
7. And it is held, that cities and towns, as it has heretofore been
held in reference to the State and counties, not being mentioned in the
statute regulating interest, are not within its provisions so as to be re-
quired to pay interest on their indebtedness. Ibid. 529.
8. So that, whatever power cities may possess to contract for the
payment of interest, in the absence of express legislation on the subject,
their indebtedness, without such agreement, does not bear interest. Ibid.
529.
Rates allowed to be reserved.
9. By act of 1845. The fourth section of the act of 1845 in rela-
tion to interest, prohibited the taking of a greater rate than six per
cent., upon any character of contract. Matthias ei al. v. Cook, 83.
73— 31bt III.
578 INDEX.
INTEREST. Rates allowed to be reserved. Continued.
10. Under act of 1849. The act of 1849, so far amended the act of
1845, as to allow the reservation of interest upon contracts for money
loaned, at the rate of ten per cent, per annum. Matthias et al. v. Cook,
83.
11. Under act of 1857. These provisions remained in force until
the passage of the act of January 31, 1857, which allowed parties to
stipulate for the reservation of interest at any rate, not exceeding ten
per cent, per annum, upon all contracts. Ibid. 83.
JUDGMENT.
In debt on penal^bond.
1. Its form. In a judgment in debt upon a penal bond, it was con-
sidered that the plaintiffs recover the sum of ten thousand dollars, theii
debt, being the penalty of the bond, and ordered that execution issue
for a less sum which was assessed as damages by the jury. The judg-
ment was regarded informal, and subject to be reversed on error.
Wales et al. v. Bogue, 464.
2. The proper judgment for the plaintiff, in an action of debt on a
bond, is, that he recover the amount of the debt found, to be discharged
by the payment of the damages and costs. Eggleston et al. v. Buck, 254.
Against an administrator.
3. It is error in rendering a judgment against an administrator, to
award execution. The order should be, that the judgment be paid in
due course of administration. Bull, Adm'r, etc. , v. Harris, 487.
Against a county. See EXECUTION.
Must be against all op several dependants, or none. See PRAC-
TICE.
Judgment against several.
4. Whether all shall remain bound. A judgment at law against two,
may be annulled by decree of a court of chancery, as to one , and remain
binding as to the other defendant. Kennedy et al., Ex'rs, etc., v. Evans, 258.
If irregular, cannot be attacked collaterally. See EVIDENCE, 15.
JUDGMENT BY CONFESSION.
Relief in equity. Effect of stipulation in power of attorney, not to in-
terfere with the judgment. See POWER OF ATTORNEY TO
CONFESS JUDGMENT.
JUDICIAL NOTICE. See EVIDENCE, 1.
JUDICIAL SALES.
Notice required on their adjournment. See SALES.
JURISDICTION.
Op suits against counties.
1. The Court of Common Pleas of the city of Aurora, has no juris-
diction of a suit against the county of Kane, in which that city is situ-
ated ; the statute requires all actions against any county to be com-
menced in the Circuit Court of the county against which the action is
brought. Board of Supervisors of Kane Co. v. Young et al. 194.
Power of courts over their process.
2. The power over its own process is possessed by all courts ; auch
power is an equitable jurisdiction that is inherent in courts of law, as
well as courts of equity. McLean County Bank et al. v. Flagg, 290.
INDEX. 579
JURISDICTION— Continued.
In Chancery. See CHANCERY.
After cause is stricken from the docket. See PRACTICE.
Of the court of common fleas of aurora. See AURORA.
Of justices of the peace. See JUSTICES OP THE PEACE.
Conflict of jurisdictions. See that title, ante.
When writ of attachment may issue to foreign county. Sm
ATTACHMENT.
JURY.
Jury must decide facts — the courts decide the law. 8te
PLEADING AND EVIDENCE.
Withdrawing a juror. See that title, post.
JUSTICES OP THE PEACE.
Of their jurisdiction.
Of offenses for which the punishment is imprisonment, and herein of
imprisonment as a means of collecting fines. See IMPRISONMENT .
Appeals from justices. See that title, ante.
LEADING QUESTIONS. See EVIDENCE, 22.
LEASE.
Estate by the curtesy — rights of the lessee. See CURTESY,
LEVY.
What constitutes a valid levy.
1. Officer must take possession. To constitute a valid levy upon
personal property, it must be within the power and control of the offi-
cer when the levy is made, and he must take it into his possession
within a reasonable time thereafter, and in such an open, public and
unequivocal manner, as to apprise everybody that it has been taken in
execution. He must so deal with the property, in order to constitute a
good levy, as, without the protection of the execution,, his acts would
make him a trespasser. Davidson v. Waldron et al. 120.
2. A levy cannot create a lien separate from the possession of the
property. Ibid. 120.
3. If a creditor seize the goods of a debtor under an execution, and
suffers them to remain in the possession of the debtor, for an unreason-
able time, the execution will be deemed fraudulent and void, as against
a subsequent execution. Ibid. 120.
4. But the delay in taking possession of the property, to have that
effect, must be shown to have been by the consent of the creditor,
either expressly or impliedly given. Ibid. 120.
5. Where the species of property is such that actual possession of it
cannot be taken, as a growing crop, it would be prudential in the officer to
call some one or more of the neighborhood, to witness that he had taken
it in execution, and he should indorse the fact on the writ. Ibid. 120
580 INDEX.
LEVY. What constitutes a valid levy. Continued.
6. So, as in this case, where an officer has levied upon a large lot of
lumber, he may be justified in suffering it to remain where he found it.
But he should exercise some act over it, such as would make him,
without the protection of the writ, a trespasser. Some public, open,
unequivocal act should be done that would lead all persons to know
that the property was no longer in the custody of its former owner,
but in that of the law. Davidson v. Waldron et al. 120.
7. Levy should be indorsed, etc. A levy should be indorsed upon the
execution, and the indorsement should show that the levy was made
within the life of the writ; and it should be distinct and specific.
Ibid. 120.
8. An indorsement upon an execution made after the return day,
that it had been theretofore "levied on 175,000 feet of lumber, at
Arlington," is insufficient. The statement of the levy is too indefinite
and uncertain to give the officer a right of possession or property in
the lumber. It does not show wheo it was levied, whether in the life-
time of the writ, or after it had expired, nor upon what lumber, or
kind or description, so that others interested may be notified of a
change of possession by means of a levy. Ibid. 120.
9. Must not be colorable. The law will not sustain a levy which is
only colorable, and designed to shield the property from the claims of
other parties. Ibid. 120.
Wbglect to make a levy.
Liability of officer. See SHERIFF.
XJEN.
Judgment lien.
1. Upon after acquired property. Real estate acquired by a judg
ment debtor after the rendition of the judgment, becomes subject to
the statutory lien of the judgment. Wales et al. v. Bogue, 464.
2. As against rights of cestui que trust. Where a party purchased
land in his own name, but with the money and as the trustee of
another, a conveyance by the trustee to the cestui que trust would pass
the title, subject to the lien of a judgment obtained by a third person
against the trustee while the title remained in him. And if the con
veyance to the cestui que trust should be made after a sale on execution
upon such judgment, no title whatever would pass thereby. Ibid. 464.
Discharge in bankruptcy.
3. Its effect upon prior liens. The discharge in bankruptcy of a
judgment debtor, will not affect the judgment lien which had previ-
ously attached to the lands of the debtor. Ibid. 464.
On service op garnishment.
4. The service of a garnishee process in a proceeding commenced by
attachment, does not create a lien in favor of the creditor, upon th«
property or effects of the debtor in the hands of the garnishee
Bigelow et al. v. Andress et al. 322.
%Tbciianics' lien. See that title, post.
INDEX. 581
LIMITATION.
Op the character op estates that may be barbed.
1. Estate by the curtesy. The title of a tenant by the curtesy may be
barred by limitation. Shortall v. Hinckley et al. 219.
The statute continues to run.
2. Should the statute of limitations commence to run against the
title of a tenant by the curtesy, while being held by the husband, the
subsequent conveyance of the land to which the title attached, by hus-
band and wife, will not arrest the running of the statute, as against
their grantee. Ibid. 219.
3. The conveyance of land while in the adverse possession of
another, although it is valid under our statute for the purpose of pasa-
ing all the rights of the grantor, does not operate to arrest the running
of the statute of limitations which had, prior to the conveyance, com-
menced to run against the grantor. Ibid. 219.
LISTING PERSONALTY FOR TAXATION.
In what county it must be done. See TAXES.
LOST INSTRUMENTS.
Proof op them by parol. See EVIDENCE.
MANDAMUS.
Excuse for not obeying peremptory writ.
Where a peremptory writ of mandamus was awarded against com-
missioners of highways, requiring them to open a certain road, it was
held to be a sufficient excuse, on the part of the commissioners, for not
obeying the writ, that after the writ was awarded, and before it was
issued and served, the road thereby directed to be opened was vacated
by an order of the same commissioners, made in pursuance of author-
ity so to do, conferred upon them by statute. Commissioners of Swan
Township v. People ex rel. Walden, 97.
Peremptory writ not justification of trespass. See TRESPASS.
MANSLAUGHTER.
Penalty on conviction. See CRIMINAL LAW.
MASTER IN CHANCERY.
Where a commissioner appointed by a decree in chancery to convey
land, departs materially from the directions in the decree, in his execu-
tion of the power, his acts, not being conformable to the decree, will
be void. Welch v. Louis et al. 446.
MEASURE OF DAMAGES.
1. Where one employs a person to purchase corn for him, and
advances money for that purpose, he cannot recover back the money
advanced, and also the value of the corn purchased with such money,
Myers et al. v. Walker, 353.
2. In debt on penal bond. In an action of debt upon a penal bond,
the plaintiff has no right to receive any part of the debt, but only the
damages and costs, which will operate to satisfy the whole debt,
Wales et al. v. Bogue, 464.
582 INDEX.
MEASURE OF DAMAGES —Continued.
3. In action on injunction bond. Where a party is restrained by in*
junction from taking possession of a farm, from March to September,
he is not restricted, in an action on the injunction bond, to proof of the
value of the use of the land up to the time of the dissolution of the
injunction, but he may show that by reason of being kept out of the
land, he lost the crops for the season. Edwards et al. v. Edwards et aL
474.
4. The question in such case is not, what the land was worth to the
complainant in the injunction suit, but what was the damage to the
defendant, by reason of being kept out of possession during that
period? Ibid. 474.
MECHANICS' LIEN.
Upon implied contracts.
1. It seems a mechanics' lien cannot arise upon an implied con-
tract. Rowley v. James, 298.
2. But it is otherwise since the act of 1861. See note on page 299.
Requisites to constitute — pleadings and proofs.
3. Petitioners for the benefit of a mechanics' lien must show, in
their pleading, a time within which the contract was to be performed
by the agreement, and the time when the money was to be paid, as
limited by the act, and on the hearing, these allegations must be
proved. Ibid. 298.
Of the decree.
4. A decree enforcing»a mechanic if lien should fix a reasonable time
within which the money is required to be paid ; and in default of pay-
ment within the time, decree a sale of the premises, or a sufficient por-
tion to satisfy the amount for which the decree is rendered. Ibid. 298.
MERGER.
If an administrator, as such, accepts from a debtor of the estate a
mortgage upon land of which the intestate died seized in fee simple,
and the title to which had fully vested in the heirs by descent, the
title or estate held by the heirs would not become merged in that
acquired by the administrator through the mortgage, so as to pass theil
estate by a sale under a decree of foreclosure of such mortgage. Weil-
bridge v. Day et al. 379.
MISDEMEANORS.
Depositions in cases of. See DEPOSITIONS.
MISNOMER.
When it need not be pleaded. See PLEADING.
MISTAKE.
Where the name Frederick Bulson was written in a pleading instead
of Isaac Bulson, and the pleading in all its parts showed that Isaa«
was intended, it was regarded a clerical error, and did not vitiate,
Bulson et al. v. The People, 409.
INDEX. 583
MITTIMUS.
Op essentials to its validity.
It is not essential to the validity of a mittimus issued by a commit-
ting magistrate in a bailable case, that he should indorse upon it the
sum in which bail ought to be taken, if such sum appears in the body
of the mittimus. Ibid. 409.
MORAL OBLIGATION. See CONSIDERATION.
MORTGAGE.
What title passes on foreclosure and sale. See EXECUTORS
AND ADMINISTRATORS.
Foreclosure by scire facias.
1. Assignee. Our statute authorizing foreclosure of mortgages by
scire facias, has confined this remedy to the mortgagee, and does not
give it to an assignee. Olds v. Gummings et al. 188.
Op the description of the premises, on foreclosure.
2. It is erroneous to enter a decree of foreclosure of a mortgage, upon
premises not mentioned in the mortgage. Troutman et al. v. Schceffer, 83.
Mortgage with power of sale.
The power passes by assignment. See ASSIGNMENT — ASSIGNOR —
ASSIGNEE.
The power is irrevocable. See POWERS.
Assignment of the debt carries the mortgage. See same title, 3, 4.
A mortgage is not assignable. Olds v. Gummings et al. 188.
Rights and remedy of assignee of mortgage. See ASSIGNMENT
—ASSIGNOR— ASSIGNEE, 6, 7, 8, 9.
Rights of mortgagee of homestead, when not released. See HOME-
STEAD EXEMPTION.
MOTION.
Setting aside sales for irregularity.
As between a purchaser, and the original parties to a suit, a court of
law will not hesitate to set aside a sale made under its own process,
for irregularity. McLean County Bank et al. v. Flagg, 290.
NON-RESIDENTS.
Publication of notice. See PROCESS.
NOTICE.
When required to be given.
1. Where a warehouseman received a lot of corn in store from cer-
tain parties, " and subject to their order, and free of all charges on
board their boats, or any boats they may send for the same,*' it wu
held, the warehouseman was bound to store the corn free of charge,
only for a reasonable time. But his right to storage, in such case,
would, it seems, only accrue after notice to the owner to remove the
corn. Myers et al. v. Walker, 353.
584 INDEX.
NOTICE— Continued.
When necessary to charge a guarantor.
2. Where a guarantor upon a lease is liable secondarily, only,
depending upon the default of the lessee, and the fact of non-payment
resting entirely within the knowledge of the lessor, it would seem but
reasonable the guarantor should have notice of the default, before the
commencement of a suit against him, so that he might pay what was
due, without suit, or procure indemnity. White v. Walker, 422.
Who must take notice.
3. Of irregularities in sales on execution. Where a purchaser under
execution is an attorney of record, and the beneficial plaintiff in the
judgment, he must take notice of irregularities in the sale. McLean
County Bank et al. v. Flagg, 290.
Publication of notice as to non-residents. See PROCESS.
On adjournment op judicial and trustees' sale. See SALES.
PARENT AND CHILD. See ADVANCEMENT.
PARTIES.
In suits at law.
1. Where a contract is several, or joint and several, the adminis-
trator of a deceased obligor may be sued at law in a separate action.
Eggleston et al. v. Buck, 254.
In chancery.
2. A State's attorney, as such, has no interest in the application of
the proceeds of the sales of swamp lands in the counties comprising
his circuit, and is not a proper party complainant, in a suit in chancery,
instituted for the purpose of compelling a county to appropriate such
proceeds to the reclamation of the lands. /Supervisors of Whiteside
Co. v. State's Attorney, etc., et al. 68.
3. Courts of equity are not confined to legal forms and legal titles,
but look beyond these, to the substantial, equitable rights of parties ;
and will allow those who have equitable rights, to enforce them in their
own names, without regard to legal titles. Olds v. Cummings et al. 188.
4. So the assignee of a judgment may enforce it in equity, in hi«
own name. Ibid 188.
5. And, as in this case, the assignee of a note secured by mortgage,
may exhibit his bill in chancery to foreclose the mortgage in his own
name ; though it would seem the assignee has not his remedy by scira
facias for that purpose. Ibid. 188.
Joinder and misjoinder op parties.
6. The administrator of a deceased obligor on a several, or joint and
several bond, cannot be sued jointly with the survivor. Eggleston et
al. v. Buck, 254.
7. Should the administrator of a deceased obligor upon a several, or
joint and several bond, be sued jointly with the survivor, the misjoin-
der would be bad on error. Ibid. 254.
8. The wife need not join with her husband, who claims the prem-
ises as teuant by the curtesy, in a suit to recover his possession, or for
damages sustained by trespass. Shortall v. Hinckley et al. 219.
INDEX. 585
PARTIES. Joinder and misjoinder of parties. Continued,
9. If it were the duty of the State's, attorney to originate a pro-
ceeding to compel a county to make a particular application of the pro-
ceeds of the sales of swamp lands, it would be improper to join with
him, as complainant, one who seeks relief personal to himself, as a pur-
chaser of swamp lands from the county, his interest being in no way
identified with the general interests represented by the State's attor-
ney. Supervisors of Whiteside Go. v. State's Attorney, etc., et al. 68.
To foreclosure of mortgage by scire facias. See MORTGAGE.
PARTNERSHIP.
Dissolution.
1. As between attorneys at law. So, where a claim was placed in the
hands of two attorneys, who were partners in the practice of law, for
collection, a judgment was obtained, land of the debtor sold under exe-
cution, and redemption from the sale by paying the money to the sheriff,
who paid it over to one of the attorneys. Prior to the redemption, the
law co-partnership between the attorneys was dissolved, yet both of
the partners were held liable to the client for the money thus received
by one of them after the dissolution. Smyth et al. v. Harvie et al, 62.
2. Where a party retains two attorneys who are partners, he is
entitled to the services of both until the business in which they are
retained, shall be completed, notwithstanding a dissolution of their co-
partnership in the meantime. Ibid. 62.
PAYMENT.
Extinguishes the debt.
1. Where a payment has been properly applied upon a particular
note, it is instantly extinguished to the extent of the payment made ;
and the note being made by several, it can never, afterwards, be
revived against any of the parties, without the consent of all. Miller
et al. v. Montgomery, 350.
Subsequent application to another debt.
2. So, a payment having once been applied upon a note which was
executed by several as principals, and by another as security, cannot,
afterwards, be diverted from that application, to another debt, upon
the mere agreement of one of the principal makers with the holder, so
as to revive the original indebtedness against the security. Ibid. 350
3. An attempt thus to revive an extinguished liability would be a
fraud upon the surety. Ibid. 350.
PLEADING.
Averment.
1. In declaration on bond of indemnity. A and B placed money
which they had bet upon a horse race, in the hands of C, as stake-
holder. A dispute arose as to which was entitled to the money, A or
B. But the stake-holder gave the whole of the money to B, upon his
giving him a bond of indemnity against any suit or demand of A in
that regard. A afterwards recovered from the stake-holder the money
which he had deposited with him. It was held, that in an action upon
his bond of indemnity, C must aver either that the obligor had notice
of the action by A against him, or that A really had a good cause of
action on which he recovered, or might have recovered the money
Fender et al. v. Stiles, 460.
74— 31st III.
586 INDEX.
PLEADING. Averment. Continued.
2. But in this case, it appearing from the bond, which constituted a
part of the declaration, that A ought to have recovered the portion of
the money which he deposited with the stake-holder, it was enough
that the latter averred in his declaration on the bond, that such recov-
ery was had. Fender et al. v. Stiles, 460.
3. Malice. In an action of trespass on the case against a clerk of
the Circuit Court for approving a bond given upon an appeal from the
judgment of a justice of the peace, which provides an insufficient
penalty, the averment that he did so, " contriving, and wrongfully and
unjustly intending to injure the plaintiff, and to deprive him of the
benefit of " a j udgment which he had obtained on the appeal, is a suffi-
cient allegation that the act was done willfully and maliciously. Bill-
ings v. Lafferty, 318.
Mode op declaring on written instrument.
4. According to Us legal effect. In declaring upon a promissory note,
or other instrument in writing, it is sufficient to describe it according
to its legal effect. Archer et al. v. Claflin et al. 306.
Of the various pleas.
5. Non est factum. The plea of non est factum is not a proper plea
to a scire facias upon a recognizance which has become a matter of
record Johnston v. The People, 469.
6. Plea of fraud. In an action upon a promissory note given to a
railroad company, a plea setting up that the note was given upon a
subscription to the stock of the company, and was induced by mis-
representations of the agents of the company as to the amount of
stock then subscribed, and the time within which the road would b€
completed, would be defective if it omitted to allege that those who
made the false representations were authorized by the company to
make them, and that they knew they were false when made. Good-
rich v. Reynolds, Wilder & Go. 490.
7. A plea in an action on a promissory note, setting up that the maker
was induced to give the note, by fraud and circumvention, should
state distinctly in what the fraud and circumvention consisted. Ibid. 490.
8. Want of consideration, as against assignee. In an action by an
assignee upon a promissory note, alleged to have been assigned before
maturity, a plea of want of consideration, to make the defense availing,
should aver that the note was assigned after it became due. Ibid. 490.
General qualities op a plea.
9. Must answer what it purports to answer. It is a rule in pleading,
that a plea must answer all that it purports to answer. If it purports
to answer the whole declaration, and answers but a part, it is obnox-
ious to a demurrer. Ibid. 490.
10. So where a declaration in assumpsit contained the common
counts and also a special count upon a promissory note, a plea which
purported to answer the whole declaration but only answered the
Special count, was held bad on general demurrer. Ibid. 490.
11. Nor did the admission by the plaintiff, after the plea was filed,
that the note was the sole cause of action, dispense with this rule of
correct pleading. Ibid. 490.
INDEX. 587
PLEADING— Continued.
Of the order of pleading, etc.
12. When a dilatory defense shall be interposed. Where the defense
in an action is of a dilatory character, it should be interposed at the
first term, if the declaration is filed ten days before such term. Ar-
cher et al. v. Claflin et al. 306.
13. When plea in abatement too late after a continuance. After a gen-
eral imparlance, which is nothing more than a continuance, a plea in
abatement, for matter which existed before the continuance, comes too
late. Ibid. 306.
14. Leave to plead in abatement after amendment. Where the affi-
davit upon which an attachment was sued out, is allowed to be amended
after the time has passed for pleading in abatement, and the amend-
ment introduces new matter, it is proper to allow the defendant to
plead in abatement to such new matter. Ibid. 306.
15. Objection to affidavit for attachment should precede a motion for
continuance. So, an objection to an affidavit, upon which an attach-
ment is sued out, for its insufficiency, is of a dilatory character, and
should precede a motion, on the part of the defendant, to continue the
cause. A motion to dismiss for such cause, should be the very first
made. It is too late to make the objection, for the first time, upon
writ of error. Ibid. 306.
16. A plea in abatement waives objection to affidavit for attachment.
And a plea in abatement traversing such affidavit, is a waiver of any
objection to the affidavit on the ground of insufficiency. And it will
make no difference that the plea is afterwards stricken from the files, —
that fact cannot affect the rules prescribed for the order of pleading
Ibid. 306.
17. Variance should be objected to before default. If there be a vari-
ance between a note as described in the declaration, and the one actually
intended to be sued upon, it cannot be taken advantage of after a judg
ment is entered on default of a plea. Ibid. 306.
18. To obtain a discontinuance. A defendant, to avail himself of
the right to demand a discontinuance, must do so before rejoining ; it
is too late after verdict. Matthias et al, v. Cook, 83.
Misnomer.
19. When it need not be pleaded. If a county which has adopts i
township organization is sued by any other name than that of the
board of supervisors, it is error, and there is no necessity for a plea of
misnomer, as in ordinary cases. County of Rock Island v. Steele, 543.
Rule to plead " to the action."
20. Its effect. A rule " to plead to the action," is equivalent to a
rule to plead to the merits. The filing of a plea in abatement is not a
compliance with such a rule. Archer et al. v. Claflin et al. 306.
Striking pleadings prom the files.
21. Where a plea in abatement was filed, after a rule to plead ' to
the action," and after the time for pleading in abatement, it was held
proper to strike it from the files. Ibid. 306.
22. If a plea is insufficient in form or substance, the only mode ol
taking advantage of the defect is by demurrer ; it is improper, in such
case, to strike the plea from the files. Ome v. Cook, 238.
&S8 INDEX.
PLEADING — Continued.
Discontinuance.
23. A discontinuance operates to discontinue the entire suit, and not
a part only, of the cause of action ; its effect is simply to non-suit
the plaintiff, leaving him at liberty to commence his action again.
Matthias et al. v. Cook, 83.
24. So where a plea purports to answer a part only of the declara-
tion, and really does answer but part, and the plaintiff replies, the de-
fendant, if he desire a discontinuance, should ask that the entire suit
be discontinued, not merely that part of the cause of action which re-
mains unanswered by plea. Ibid. 83.
25. And where, in such state of the pleadings, the defendant move*
to discontinue only as to that part of the declaration which is unan-
swered, it is not error to refuse the motion. Ibid. 83.
26. The defendant, by rejoining and proceeding to trial, waives his
right to a discontinuance; the motion comes too late after verdict.
Ibid. 83.
Waiver.
27. A defendant, by rejoining or proceeding to trial, waives bis
right to a discontinuance ; a motion for that purpose comes too late*
after verdict. Ibid. 83.
What pleas must be sworn to.
Raising an issue on the assignment of a note. See ASSIGNMENT-
ASSIGNOR— ASSIGNEE.
Demurrer. See that title, ante.
Variance. See PLEADING AND EVIDENCE.
PLEADING IN CHANCERY. See CHANCERY.
PLEADING AND EVIDENCE.
Evidence under certain issues.
1. Under an issue upon a general plea of property in the defend-
ant, in an action of replevin, the defendant may show any legal title to
the property, no matter how derived. O'Connor v. Union Line Trans-
portation Company, 230.
2. If the defendant show, under such issue, that the property in
controversy was sold by a proper officer, under a valid execution,
issued on a valid judgment, before the commencement of the action of
replevin, and he had become the purchaser, it will be sufficient to sus-
tain the plea of property in himself. Ibid. 230.
3. Nor will the defendant be precluded from relying upon the par-
ticular title under his general plea of property in himself, merely be-
cause he may have set up the same title, specially, in another plea,
upon which there is also an issue. Ibid. 230.
INDEX. 589
PfiEADING AND EVIDENCE.
Evidence under certain issues. Continued.
4. In au action against a guarantor upon a lease, one of the
defenses interposed being an alleged new agreement entered into
between the lessor and lessee, by parol, whereby less rent was reserved,
which, it was alleged, had been paid, it was competent for the defend-
ant to prove that by reason of raising the grade of the street in front of
the premises, they had become untenantable or less convenient, for the
purpose for which they were leased, by way of showing to the jury,
perhaps, that to have been one of the inducements for the lessor to
make a new contract ; and the court had no right to exclude such evi-
dence, and to tell the jury it was offered for the sole purpose of avoid-
ing the payment of full rent under the lease and guaranty. White v.
Walker, 422.
5. In an action for trespass upon the uninclosed portion of a tract
of land, the plaintiff showed a paper title to the whole, and actual pos-
session and cultivation of part, claiming the whole tract. Held, to be
sufficient evidence of title to the uninclosed part, to sustain the action.
Welch v. Louis et al. 446.
6. The plaintiff having such title, the occasional use of an unde-
scribed part of the tract by the defendant, who occupied an adjacent
farm, to place wood upon, and resorting to the bank of the river upon
which it lay, for washing, picking up sticks of wood upon it, crossing
over it to reach the river, are no possessory acts out of which a title
could spring, sufficient to defeat that of the plaintiff. Ibid. 446.
Whether the issues are established by proof.
7. It would be improper to strike out a plea because it was not sup-
ported by the proofs in the case. The court may inform the jury what
facts must be proved to sustain the issue, but cannot determine whether
such facts have been established ; that is the province of the jury.
Orne v. Cook, 238.
8. So it is erroneous to instruct a jury to disregard certain items in
&n account, in regard to which evidence has been given ; it is the prov
inceof the jury, not the court, to decide whether such items have been
proven. Myers et al. v. Walker, 353.
Allegations and proofs — variance.
9. In declaring upon a promissory note, or other instrument in writ-
ing, it is sufficient to describe the instrument according to its legal
effect. So, in declaring upon a promissory note, payable " without defal-
cation or discount,'' if those words be omitted in describing the note,
there will be no variance. Archer et al. v. (Jlafliii et al. 306.
10. If the pleader, however, professes to give the legal effect of the
instrument, and the legal operation is different from that which appears
by his statement, it will be a fatal variance. Ibid. 306.
11. In declaring upon a promissory note, bearing date on the 17tb
of April, 1857, and payable six months after date, the note was described
as being "payable six months after the date thereof, to wit, on the 17th
day of October, 1857." The averment as to the time at which the note
was payable (six months after date), was in the terms of the note ; and
making it more specific, by stating the day on which it fell due, wafj
mere surplusage, and if incorrect in this particular, it would not vitiate.
Ibid. 306.
590 INDEX.
PLEADING AND EVIDENCE
Allegations and proofs — variance. Continued.
12. Where a declaration upon a promissory note describes the instru-
ment sued upon as bearing a particular date, corresponding with th
date of the original note offered in evidence, there is no variant
although that which was filed with the declaration as a copy, pur-
ported to be of a different date. Archer et al. v. Clqflin et al. 317.
13. An allegation that a party agreed to deliver " one hundred and
ten hogs," or, " one hundred and more hogs," is not sustained by
proof that the number to be delivered was one hundred. Davidson v.
Johnson, 523.
Op the application and purpose op evidence.
14. Who shall determine. It is not proper for the court to instruct a
jury for what special and exclusive purpose certain evidence was intro-
duced upon the trial of a cause, when it could be legitimately applied
to another and different purpose. White v. Walker, 422.
POLICE MAGISTRATE.
Jurisdiction op oppenses the punishment for which is imprison-
ment, and herein of imprisonment as a means of enforcing the
collection of fines. See IMPRISONMENT.
POSSESSION.
Sales of personalty. See FRAUD.
Sales of realty in adverse possession. See CONVEYANCES.
Of untnclosed land. See TRESPASS.
POWERS.
What powers are irrevocable.
1. Power of sale in a mortgage. Where a mortgage gives to the
mortgagee and his assigns, power to sell, upon default in payment,
such power is irrevocable. Pardee v. Lindley, 174.
Power coupled with an interest.
2. Power of sale in a mortgage. A power given in a mortgage, to the
mortgagee and his assigns, to make sale of the premises in default of
payment, is a power coupled with an interest, and is irrevocable. Ibid.
174.
Of naked powers.
3. A naked power, such as that given to a master in chancery, by
decree, to convey land, must be strictly pursued, and a conveyance of
land not authorized by the power, is a void conveyance. Welch v.
Louis et al. 446.
Of naked powers given to several — whether a part may exercise the
power. See EXECUTORS AND ADMINISTRATORS, 1, 2, 3, 4, 5.
Powers that pass by assignment. See ASSIGNMENT— ASSIGNOR —
ASSIGNEE, 5.
INDEX. 591
POWER OF ATTORNEY TO CONFESS JUDGMENT.
Stipulation not to interfere with judgment.
A judgment was entered, against the principal and surety in a note,
by confession upon a power of attorney executed by thein, which pro-
vided that no bill in equity should be filed to interfere in any manner
with the operation of the judgment entered by virtue thereof Sub-
sequently, the surety filed his bill in equity for relief against the
judgment on the ground that he was released by reason of the payee
extending the time of payment to the principal maker, before the
entry of the judgment, without the assent of the surety. The Circuit
Court granted the relief prayed for, and the Supreme Court affirmed
the decree. Kennedy et al., Ex'rs, etc., v. Evans, 258.
PRACTICE.
Time of filing declaration.
1. The latter clause of section eight, of the " Practice " act, which
requires a declaration to be filed ten days before the " second term of
the court," after the issuing of the summons or capias, does not refer,
necessarily, to ike first process in. the cause, but refers to the process
which may be actually served on the party, though that be an alias or
pluries, or subsequent writ. Herring v. Quimby et al.153.
2. If a defendant enter his appearance in a cause at the first term
after the commencement of the suit, and desire to see the declaration,
though not served with process, the court, in its discretion, may order
the plaintiff to file his declaration within a reasonable time. Ibid. 153.
In case of several defendants.
3. Judgment must be against all or none. In actions not sounding in
tort, where two or more are sued, judgment must be rendered against
all who are served, or, if that cannot be, then against none. Briggs v.
Adams, 486.
4. Exceptions to the rule. There are some exceptions to this rule
where the defense is personal, as infancy, or bankruptcy. Ibid. 486.
5. Rule applies to justices' courts. The rule applies as well to
actions commenced before justices of the peace, as in courts of record.
Ibid. 486.
See JUDGMENT, 4.
6. When all are not served. Where two only, of three defendants
in an action of debt, are served with process, it is proper to take judg-
ment against the two upon whom service was had. Fender et al. v.
Stiles, 460.
Striking a cause from the docket.
7. Its effect — mode of bringing the cause again before the court.
The striking of a cause from the docket does not place it so out of
court and beyond its jurisdiction, but that it can be again brought
before the court in some mode. Tibbs et al. v. Allen, 29 111. 535, in
which the mode of bringing the case again before the court is sug-
gested. Welch v. Louis et al. 446.
8. Where all the parties to a suit in. chancery have died since the
cause was stricken from the docket, the course indicated by the prac-
tice in chancery by which to bring the case again before the court, is
by bill, in the nature of a bill of revivor, by the heirs at law of one
party against the heirs at law of the other party. Ibid. 446.
9. And the bill in such case, should progress to a hearing and
decree, as in other cases, Ibid. 446.
592 INDEX.
PRACTICE. Striking a cause from the docket. Continued.
10. Unless this course is pursued, or something1 equivalent to it, the
court can have no j urisdiction of the case. Welch v. Louis et al. 446.
.11. In this case, after a decree enforcing the specific performance
of a contract in regard to a division of a tract of land between two
claimants, and a commissioner appointed to execute deeds to the \ arties
respectively, the cause was stricken from the docket. Six years after-
wards both parties died. Four years after their death, the commis-
sioner not having yet acted, and the cause being still off the docket, the
court entered a decretal order that the commissioner convey to the
heirs of the original parties respectively, which he did. Held, that
these last proceedings in the court, after the cause was stricken from
the docket, were coram non judice, and were not only irregular, but
void; and so, also, the deeds executed in pursuance of such proceed-
ings, were void. Ibid. 446.
When certain objections must be taken.
12. It cannot be objected for the first time on appeal, that a jury
empanneled to assess damages, were sworn " to try the issues," when
the party objecting was present and contested the assessment, and took
a bill of exceptions. He should have objected then to the form of the
oath, so that the proper oath could have been administered. Edwards
et al. v. Edwards et al. 474.
Of the order op pleading, and other proceedings in the progress of a
cause. See PLEADING.
Striking pleadings from the files. See PLEADING.
Of the application of evidence — who shall determine. See IN
STRUCTIONS.
Province of a jury — what they shall determine. See INSTRUCTIONS.
Withdrawing a juror. See that title, post.
PRACTICE IN THE SUPREME COURT.
What the record should contain.
1. Where there has been constructive service upon a non resident
defendant in chancery, by publication of notice, and it is recited in the
notice, and also in the decree which is rendered in the cause, that an
affidavit of non residence was filed, that is sufficient, without the affi-
davit being preserved in the record. Millett et al. v. Pease et al. 377.
Abstracts.
2. Where an abstract of the record is wanting, the court will take
the facts as they are presented in the briefs, or the case will be most
summarily disposed of. Bulson et al. v. The People, 400.
PRESUMPTION.
That drawee of bill of exchane has funds. See BILLS OP EX
CHANGE AND PROMISSORY NOTES, 3, 5.
PRINCETON, TOWN OF.
Its powers. See IMPRISONMENT.
PRINCIPAL AND AGENT, See AGENT.
PRINCIPAL AND SURETY. See SURETY.
INDEX. 593
PROBATE COURT.
Not a court of record.
The probate court as it existed under the act of March 4, 1837, w&s
not a court of record. Wardwell v. McDowell et al. 364.
PROCESS.
Its requisites.
1. The 26th section of the 5th article of the constitution declares
that " All process, writs and other proceedings, shall run in the name
of 'The People of the State of Illinois.' " Leighton v. Hall, 108.
2. A certified copy of a mere decretal order or rule of a court of
chancery, directing the sheriff to attach the body of a party, and detain
him in close custody until he shall comply with certain requirements
of the court, is neither a writ nor a process, and will not authorize the
officer to make the arrest, nor is it his duty to obey the command in
the order or rule in that respect. Ibid. 108.
When necessary and when not.
3. On appeals from justices. Where an appeal from the judgment of
a justice of the peace to the Circuit Court, is perfected according to the
provisions of section 60 of the 59th chapter, Rev. Stat. 1845, by filing the
appeal bond in the office of the justice, no summons is required to be
issued to the appellee ; each party is bound to follow up the appeal.
Boyd v. Kocher, 295.
4. But if an appeal be perfected under section 61 of the same chap-
ter, by filing the bond in the office of the clerk of the Circuit Court, a
summons must issue to the appellee ; in that case, the appellant using
proper diligence in procuring process, the appellee, if not served with
the process, would have no right, by entering his appearance, to have
the appeal dismissed for want of prosecution. 19 111. 53. Ibid. 295.
When it may, or may not, issue to foreign county.
5. Suits against counties. In suits brought in the Circuit Court
against the county, the process of the court can in no case run beyond
the limits of the county. Board of Supervisors of Kane Go. v. Young
et al. 194.
See ATTACHMENT, 2.
Service upon counties.
6. When, where, and upon whom. Where a county is sued, the stat-
ute provides that the process shall be served upon the clerk of the
County Commissioners' Court, and the service upon the clerk should
be at his office. Ibid. 194.
7. The statute provides that the service upon the clerk in such case,
must be either during the sitting of the Commissioners' Court, or, so
that a term of that court shall intervene between the service and
return day of the writ ; and the same rule applies in counties where a
board of supervisors has superceded the County Courts. The court
will take notice of the regular sittings of the board, but, in the absence
of proof, will not presume that a special meeting was held, so as to
make a service of process good. Ibid. 194.
75— 31st III.
694 INDEX.
PROCESS — Continued.
Of the sufficiency of service — and herein of the evidence thereof.
. 8. It is sufficient service of a summons in chancery, where the
defendant indorses upon it his written acknowledgment that he has
received a copy of the writ. Banks v. Banks, 162.
9. And the recital in the decree that it appeared to the co irt that
the defendant had been duly served with process, is satisfactory proof
that the defendant did make the indorsement. Ibid. 162.
10. The return upon a summons in assumpsit was as follows : " The
within named Daniel P. Vanmeter waived reading, and accepted ser-
vice, this 29th day of March, 1862." The service was insufficient to
authorize a default. Vanmeter et al. v. Durham et al., Adm'rs, etc. 237.
11. The transcript of the record in this case, showed that a sum-
mons which issued against Jacob W. Vanmeter, was returned
served upon 8. W. Vanmeter ; from the original summons, which was
produced, it appeared that service was had upon J. W. Vanmeter ; and
that was sufficient. Vanmeter v. McHard, 257.
Of constructive service, by publication.
12. Return of " not found " Since the act of 12th February, 1857,
it is not necessary that there should be a return of " not found," to
authorize constructive service upon non-residents by publication of
notice. Millett et al. v. Pease et al. 377.
When process must issue, to authorize an arrest. See ARREST.
Garnishee process. See GARNISHMENT.
PROPERTY.
Special property in an officer. See SHERIFF, TROVER.
BAIL-ROADS.
Fencing their track.
1. A railroad company are not required to fence their track upon
their depot grounds in a town. Galena and Chicago Union R. R. Co.
v. Griffin, 303.
Care — negligence.
2. Running over stock. In this case, a colt ran upon the road before
the locomotive, and was run over and killed. The train, at the time,
was running through a town, upon the depot grounds of the company,
at the usual rate of speed. The bell upon the locomotive was ringing.
The colt ran upon the road from behind a building, so near the road
that it could not be seen by the engineer in time to check the train ;
but as soon as he saw it he blew the whistle, and the breaks were put
down. The track, at that point, was not fenced. Held, that the com:
pany was guilty of no negligence. Ibid. 303.
Railroad companies may take and negotiate promissory notes. See
BILLS OF EXCHANGE AND PROMISSORY NOTES.
Illinois Central Railroad Company — Exemption from taxation. See
ILLINOIS CENTRAL RAILROAD COMPANY.
INDEX. 595
RECOGNIZANCE.
Record thereof is a verity.
1. After a recognizance which was entered into upon the examina-
tion of a party charged with crime, before a magistrate who had juris-
diction of the offense, has properly become a matter of record, the
action of the magistrate cannot be impeached, nor the proceedings
assailed. Bulson et al. v. People, 409.
By whom to be taken.
2. A party having been examined upon a charge of larceny before
a single justice of the peace, was required to enter into a recognizance
for his appearance at the next term of the Circuit Court ; failing to
comply with this requirement, he was committed to jail. Four days
afterwards, the committing magistrate, alone, took the recognizance of
the prisoner, and the recognizance was held to be valid. Johnston v.
The People, 469.
May be taken on Sunday. Ibid. 469.
RECORD.
To the supreme court — what it should contain. See PRACTICE IN
THE SUPREME COURT.
Record of recognizance, is a verity. See RECOGNIZANCE.
RELEASE.
Of surety. See SURETY.
Release of witness — to restore competency. See WITNESS.
Release of guarantor, by a new agreement. See GUARANTY
Of sealed instruments — whether by parol or under seal. See SEALED
INSTRUMENTS.
Of homestead right. See HOMESTEAD EXEMPTION.
REPEAL OF STATUTES See STATUTES.
REPLEVIN.
When it will lie.
A party owned a quantity of corn which had been purchased for him
by a warehouseman, who put it in a mixed mass with other corn, owned
. by different persons, who had stored their corn with the warehouse-
man. The warehouseman delivered the whole of the corn, in its
mixed condition, to the party for whom he had been buying, from
whose possession it was afterwards wrongfully taken by a third party.
The party from whose possession the corn was thus wrongfully taken,
recovered it by action of replevin. Warner v. Gushman et al. 283.
Evidence under plea of property in the defendant. See PLEADING
AND EVIDENCE, 1, 2, 3.
SALES.
Judicial sales.
1. Divisibility of property. The statute regulating sales on execu-
tion, was not designed to authorize the sheriff to divide entire parcelt
of real or personal property, in such a mode as to become oppressive oy
injurious to the parties. McLean County Bank et al. v. Flagg, 290.
596 INDEX.
SALES. Judicial sales. Continued.
2. It is the duty of the officer to sell the property in such manner,
as to quantity, as will produce the largest price, with the least injury
to the debtor. McLean County Bank v, Flagg, 290.
3. When the articles of property, or the tracts of land, are several,
then the sale should be several; but when different tracts of land have
become one, by extending buildings over portions of all, they lose
their several character, and should be sold en masse. Ibid. 290.
Adjournment of judicial and trustee's sales.
4. A power of sale conferred in a deed of trust, must be strictly
pursued as to the time of giving notice of the sale. So, if the deed
requires thirty days notice to be given, such sale cannot be adjourned
for a less number of days ; should tire sale be adjourned, full thirty
days notice of the time and place of the sale must still be given.
Thornton v. Boyden, 200.
5. It is the right and duty of a trustee, or a sheriff or other officer,
or commissioner, to adjourn a sale, whenever, from any cause, a reason-
ably advantageous price cannot be had, and when it is necessary
to prevent a great sacrifice of the property ; but in case of such
adjournment, the same notice must be given as was originally required.
Ibid. 200.
Irregularities in sales — remedy. See MOTION.
Sales of personalty — delivery of possession. See FRAUD.
Caveat emptor. See that title, ante.
Sale by assignee in bankruptcy. See BANKRUPTCY.
SCIRE FACIAS.
Foreclosure of mortgages.
To whom the remedy is given. See MORTGAGE.
BEALED INSTRUMENTS.
Of thelr discharge by parol.
1. It was an old maxim of the common law that an obligor could
only be released, by an instrument of as high dignity as that by which
he was bound — being obligated by a seal, he could be released only
by an instrument under seal. White v. Walker, 422.
2. Technically, this may be the rule of modern times, but practi-
cally, it is not enforced. Ibid. 422.
3. It is of frequent occurrence that in an action of debt on a bond,
or other sealed instrument, the defendant under his plea of payment,
proves by parol, the actual receipt by the obligee, of the money due on
the bond and which would operate as a release and discharge of the
bond. Ibid. 422.
4. So with a debt secured by mortgage, a release of such debt need
not be under seal. Ryan v. Dunlap et al., 17 111. 40. Ibid. 422.
5. And it may be that in every case, where parties are bound to
one another by writing under seal, the obligors will be discharged by
parol proof of facts, if sufficient in themselves to constitute a dis-
charge. And this, more especially, in cases where some one or more
of the parties are sureties only. Ibid. 422.
INDEX. 597
SEALED INSTRUMENTS. Op theer discharge by parol. Continued.
6. In all contracts for chattel interests, evidenced by sealed instru-
ments, performance in pais will, generally, discharge all the par-
ties to it. White v. Walker, 422.
7. So in a lease for rent at a stipulated sum, and guaranteed, as in
this case, a new parol agreement with the lessee, will discharge Mm.
Ibid. 422.
SERVICE OF PROCESS. See PROCESS.
SETTLEMENT OF ACCOUNTS.
Evidence that everything was included. See EVIDENCE.
SHERIFF.
AS COLLECTOR OP TAXES.
1. From the passage of the act of 1839, entitled "An act concerning
the public revenue," up to 1845, the offices of sheriff and collector of
taxes were distinct and independent, neither one having any relation to,
or connection with, the other. Wood et al. v. Cook, 271.
2. But by the revenue act of 1845, the office and duties of collector
are merged into that of the sheriff ; so the office of " collector " no
longer exists. Ibid. 271.
3. So it is the duty of the sheriff, as such, to collect the taxes, so
soon as he executes the required bond. Ibid. 271.
Deputy sheriff — his duty as collector of taxes.
4. As it is one of the duties of the sheriff to collect the taxes, and
as his deputies are authorized to perform any and all of his duties, the
duty of collecting taxes is included. Ibid. 271.
Sureties of deputy — how far liable.
5. If a deputy sheriff is delinquent in the collection of taxes, his
sureties are liable on their bond to his principal. Ibid. 271.
Special property in sheriff, what constitutes.
6. Levy of execution. A valid levy of an execution upon person-
alty, will give the officer such a property and right of possession therein
as will enable him to maintain an action of trover. Davidson v. Wald-
ron et al. 120.
Neglect of duty — liability.
7. Neglect to make a, levy. If the officer in whose hands an execu-
tion is placed, shall, without the consent of the creditor, so delay
making a proper levy, that the rights of third parties intervene, the
creditor has his remedy against the officer. Ibid 120.
Op his duties — obeying orders of court. See ARREST.
SHERIFF'S SALES.
Notice requhied on their adjournment. See SALES.
They may be adjourned. See SALES.
SPLITTING A CAUSE OF ACTION.
The law will not allow two actions upon one entire demand. Jfot-
thias et al. v. Cook, 83.
698 INDEX.
STATE'S ATTORNEY.
His duties.
As regards swamp lands. A State's attorney, as such, has no interest
td the application of the proceeds of the sales of swamp lands in the
•counties comprising his circuit, and is not a proper party complainant,
in a suit in chancery, instituted for the purpose of compelling a
county to appropriate such proceeds to the reclamation of the lands.
Supervisors of Whiteside Co. v. State's Attorney, etc., et al. 68.
STATUTES.
Repeal of statutes.
1. Repugnancy. A statute may be repealed without an express
clause for that purpose ; where two statutes are repugnant to each
other in their provisions, the latest expression of the will of the legis-
lature must prevail. Mullen v. The People, 444.
Construction of particular statutes.
2. Of the time of fling declarations. See PRACTICE.
3. Discharge from imprisonment for non-payment of a fine. See
IMPRISONMENT.
4. Of the act exempting the property of the Illinois Central Railroad
Co. from taxation. See ILLINOIS CENTRAL RAILROAD COM-
PANY.
5. In relation to swamp lands. See SWAMP AND OVERFLOWED
LANDS, 2.
6. Wliat acts may be done on Sunday. See SUNDAY.
STATUTE OF FRAUDS.
What is a writing, within the statute.
A party desiring to purchase goods, wrote a letter to his merchant,
stating the terms upon which he wished to buy, and offering a certain
person as the indorser of his notes ; on the back of this letter, the
party offered as indorser wrote a note accepting the terms mentioned in
the letter, and signed his name to it. The goods were furnished on
the faith of the promise to indorse. Held, that the acceptance of the
terms of the letter written on the back of it, was a sufficient writing
within the statute of frauds, to bind the party who thus promised to
become indorser. Orne v. Cook, 238.
STRIKING A CAUSE FROM THE DOCKET.
Of its effect — and herein of the mode of bringing the cause again
before the court. See PRACTICE.
SUNDAY.
1. Generally, judicial acts cannot be performed on Sunday. Johns-
ton v. The People, 469.
2. But the entering into a recognizance by one charged with a crimi
nal offense, is not such a judicial act as to render its execution void,
either at the common law or under the 144th section of the criminal
code, because it was entered into on Sunday. Ibid. 469.
INDEX. 599
SUNDAY — Continued.
3. The 144th section of the criminal code which prohibits all labor
on Sunday, works of necessity and charity excepted, does not mean by
the word " necessity/' a physical and absolute necessity, but a moral
fitness or propriety of the work done under the circumstances of each
particular case. Johnston v. The People, 469.
4. Any work, therefore, necessary to be done to secure the public
safety, by the safe keeping of a felon, or delivering him to bail, must
come within the true meaning of the exception in the statute. Ibid. 469.
SURETY.
Release.
1. Extension of time to principal. An extension of the time of pay-
ment of a note, by the holder to the principal debtor, without the assent
of the surety, until the principal becomes insolvent, will operate as a
release of the surety. Kennedy et al., Ex'rs, etc., v. Evans, 258.
Quaere. Whether this rule applies in the case of a "joint and
several " promissory note. Drew v. Drury, 250.
2. Where such defense may be made. Such defense can be made
available in equity, whether the fact of suretyship appears on the face
of the instrument or not. And the same rule has been applied in an
action at law, in Flynn v. Mudd <& Hughes et al., 27 111. 323. Kennedy
et al., Ex'rs, etc., v. Evans, 258.
See ESTOPPEL.
Waiver of release.
3. By subsequent payment of part. Where the principal maker and
the payee of a note, agree, for a valuable consideration, to extend the
time of payment of the note, without the knowledge or* assent of the
surety, a subsequent payment of a part of the note by the surety, and
a promise by him to pay the balance, with a knowledge on his part, at
the time, of the prior extension, will be a waiver of any defense which
he might have made by reason of the extension. Hinds et al. v. Ing-
ham, 400.
Of deputy sheriffs — their liability. See SHERIFF.
Release of guarantor, by a new agreement. See GUARANTY.
BWAMP AND OVERFLOWED LANDS.
Character of the grant to the State.
1. Fee simple title passes. By the grant of swamp and overflowed
lands to the State of Illinois, under the provisions of the act of Con-
gress, of September 28, 1850, to enable the State of Arkansas and
other States to reclaim the " swamp lands " within their limits, a fee
simple estate passed, unconditionally. The State became the absolute
owner of the lands, with power to dispose of them in such manner, and
for such purposes, as to the legislature might seem most expedient.
Supervisors of Whiteside Co. v. State's Attorney et al. 68.
2. Policy of the State in respect thereto. It was the intention of the
General Assembly, under the various acts on the subject, to grant tc
the several counties in the State the swamp and overflowed lands
within their limits, respectively, and to remit to such counties the
exclusive control over these lands, and over their prQceeds. Ibid. 68.
600 INDEX.
SWAMP AND OVERFLOWED LANDS.
Character of the grant to the State. Continued.
3. Bights of purchasers — obligation of counties. So, where a party pur*
chased swamp lands from a county in 1856, and executed his notes foi
the absolute payment of the purchase-money, he has no remedy to com-
pel the county to appropriate the proceeds of the sales of such lands to
their reclamation, as was contemplated by the legislation on the sub-
ject, in force at the time of his purchase ; but his rights in that regard
are to be determined by the policy subsequently adopted by the legis-
lature, which placed the whole subject of the control of these lands,
and the appropriation of their proceeds, in the hands of the several
counties, and released them from all the liabilities and obligations
theretofore imposed upon them respecting them. Supervisors of
Whiteside Go. v. State's Attorney, etc., et at. 68.
4. And where such purchaser claimed the right to pay the purchase-
money for which he had given his notes, in labor to be bestowed in the
reclamation of the lands, it was held, that he could in no way have
insisted upon such right, except by being the lowest bidder at the
lettings of the work under the act of June 22, 1852, and that under
the subsequent legislation the county was under no obligation to carry
out the system of reclamation of the lands as contemplated by that
act. Ibid. 68.
fAXES.
In what county personalty must be listed.
Under the revenue law of 1853, personal property must be listed
for purposes of taxation, in the county, town or district where the
owner resides, notwithstanding the property itself may remain, and be
in use, in another county, as in case of farming implements, stock, etc.,
upon a farm. King et al. v. McDrew et al. 418.
Exemption from taxes. See ILLINOIS CENTRAL RAILROAD COM-
PANY.
Collector of taxes. See SHERIFF.
TENDER.
Returning property — want of title.
Effect of retaining personalty, when there is a failure of title, upon
purchaser's rights as against the seller. See CONSIDERATION.
TITLE.
Character of title required of plaintiff in trover. See TROVER.
Title of defendant in replevin, who pleads property in himself—
how it may be derived. See EVIDENCE.
TOWNSHIP ORGANIZATION.
In what name counties to be sued. See COUNTY.
Judicial notice of organization. See EVIDENCE.
INDEX. 601
TRESPASS.
Upon land.
1. former occupancy, no defense. One who has been an occnpanx of
government land, but who has abandoned the premises, the title to the
land having in the meantime become vested in a purchaser from the
government, cannot set up his former occupancy as a defense against
trespasses committed by him upon the premises after his abandon-
ment. Welch v. Louis et al. 446.
Upon uninclosed land.
2. Of the title and possession. Action for trespass upon the unin-
closed portion of a tract of land. The plaintiff showed a paper title to
the whole, and actual possession and cultivation of part, claiming the
whole tract. Held, to be sufficient evidence of title to the uninclosed
part, to sustain the action. Ibid. 446.
8. The plaintiff having such title, the occasional use of an unde-
scribed part of the tract by the defendant, who occupied an adjacent
farm, to place wood upon, and resorting to the bank of the river upon
which it lay, for washing, picking up sticks of wood upon it, crossing
over it to reach the river, are no possessory acts out of which a title
could spring, sufficient to defeat that of the plaintiff. Ibid. 446.
Justification.
4. Mandamus. Should commissioners of highways proceed, in obe-
dience to the mandate of a court, to open a road, after the same had
been discontinued by competent authority, they would be trespassers ;
a peremptory writ of mandamus requiring them to do the act could
not be pleaded' in justification of such trespass. Commissioners of
Swan Township v. People ex rel. JValden, 97.
TROVER.
Plaintiff must have title ; and herein of what character.
1. In an action of trover and conversion, as in an action of eject
ment, the plaintiff must recover on the strength of his own title, with
out regard to the weakness of that of his adversary. Davidson v.
Waldron et al. 120.
2. Trover is a possessory action, and the plaintiff must show that
he has either a special or a general property in the thing converted
and the right to its possession. Ibid. 120.
3. A valid levy of an execution upon personalty, will give the officer
such a property and right of possession therein as will enable him tc
maintain an action of trover. Ibid. 120.
76— 31st III.
602 INDEX.
TRUSTS AND TRUSTEES.
Op the grounds for removal.
1. Absence and neglect. Where real estate is conveyed to a trustee,
for the purpose of securing a debt, with power in the trustee to sell
the land in the event of non-payment, the mere absence of the trustee
from the State, will not, of itself, constitute sufficient ground for his
removal ; but when, in addition to his absence from the State, he
neglects to give attention to his duties as trustee, a court is fully war-
ranted in removing him, and appointing a suitable person to carry the
trust into effect. Mil et al. v. Neafie, 101.
2. Remedy in case of neglect of duty. Where the trustee named in
a deed of trust given to secure a debt, with power in the trustee to sell
the premises in the event of non-payment, is absent from the State and
neglects his duties, he may be removed, and a suitable person appointed
to carry out the trust ; but the better practice is to file a bill for a fore-
closure, and in the decree require the master or a special commissioner,
to make the sale and execute the trust. Ibid. 101.
Ln regard to church property.
3. All are beneficiaries. Where a conveyance of a lot of ground is
made to certain individual members of a religious body, who have no
corporate existence, in trust, to them and their successors in office, for
church purposes, all the members of the body become beneficiaries in
such property in an equal degree, notwithstanding some of them may
have contributed a larger sum than others towards the common enter-
prise. Ferraria et al. v. Vasconcellos et al. 25.
4. Division in churches — its effect upon the title to the common prop-
erty. So, where such religious body, after having acquired the church
property in the manner indicated, became connected with a particular
presbytery, from which a majority subsequently withdrew, on account
of a schism which arose in the local church on the question of the valid-
ity of Roman Catholic baptism, the minority adhering to their presby-
terial connection, it was held, that whatever may be the .ecclesiastical
right of a church, or a portion of a church, to sever its connection with
a particular presbytery, with or without its consent, it does not follow
that the majority, in so acting, become entitled to the property of the
church, to the exclusion of the minority. Their rights still remain,
and should be adjusted on the principles of equity. Ibid. 25.
5. If the majority have a right to withdraw from the presbytery, so
the minority have a right to adhere to it. Neither act works a for-
feiture of the rights of either, to the church property, because, ir
neither case has an illegal act been done. Ibid. 25.
6. And all the members, the minority adhering to the forme
church connection, as well as the majority who seceded therefrom
being equally beneficiaries of the common property, in case of a sepa
ration such as is spoken of, the property should be divided between the
two parties in proportion to their numbers at the time of the separation
Ibid. 25.
INDEX. 60*
TRUSTS AND TRUSTEES.
In regard to church property. Continued.
7. The fact that the majority, after their withdrawal, elected
trustees, and the minority made themselves a corporation, and also
elected trustees, would not change the aspect of the case ; the trustees
of neither of those bodies would be regarded as the " successors in
office" of the original trustees named in the deed, so as to take the
title to the property, to the exclusion of the others. Ferraria et al. ▼
Vasconcellos et al. 25.
8. Departure from doctrine — its effect upon the title to the church
property. As a matter of law, the rule is, that where a church is erected
for the use of a particular denomination, or religious persuasion, a
majority of the members of the church cannot abandon the tenets
and doctrine of the denomination, and retain the right to the use of
the property ; but such secessionists forfeit all right thereto, although
but a single member adhere to the original faith and doctrine of the
church. Per Mr. Chief Justice Caton. Ibid. 25.
9. Those who contribute to the purchase or erection of a church
edifice, are presumed to do so with reference to a particular form of
worship, or to promote the promulgation or teaching of particular
doctrines or tenets of religion ; and to pervert the property to another
purpose, is an injustice of the same character as the application of
other trust property to purposes other than those designed by the
donor. Ibid. 25.
10. Hence it is, that those who adhere to the original tenets ami
doctrines for the promulgation of which a church has been erected,
are the sole beneficiaries designed by the donors ; and those who depart
from and abandon those tenets and doctrines, cease to be beneficiaries.
and forfeit all claim to the title and use of such property. Ibid. 25,
11. But where a majority withdraw from the ecclesiastical controi
of the presbytery, as in this case, and having the right so to do \ the
minority, in the exercise of the same right, adhering to the connection
with the superior body, neither party violates the trust reposed., nor
forfeits any right to the common property. Ibid. 25.
12. And where neither party has forfeited any right, and the mem
bers of the church thus separated are nearly equal in numbers, the
property should be divided. Ibid. 25.
13. But it is not to be understood, that such division should be
made where one party or the other consisted of a single member, oi
but a very few members, for then the minority might be regarded as
acting obstinately or'perversely. Ibid. 25.
Who may be compelled to execute a trust.
14. Power of courts over the legislature. Even if the grant of the
swamp lands to the State had been made upon the trust that the pro-
ceeds of the lands should be expended in reclaiming them, such a
trust would have been of municipal and not judicial concern, over
which the power of the State would have been plenary and exclusive
The courts have no power to compel the legislature to execute such 8
trust. Supervisors of Whiteside Go. v. State's Attorney, etc., et al. 68.
Judgment liens agatnst trustee — how far cestui que trust affected b%
them. See LIEN.
604 INDEX.
USURY.
What constitutes.
1. The reservation of interest in a note, at the rate of ten per cent
per annum, payable semi-annually, is not usurious. The whole interest
may be lawfully reserved in advance. Goodrich v. Reynolds, Wilder &
Co. 490.
Forfeiture under the statute.
2. Under the act of 1845. The act of 1845 declared a forfeiture of
three-fold the whole amount of interest reserved, if a higher rate
than six per cent, should be received, or agreed to be paid. Matthia*
et at. v. Cook, 83.
3. Under act of 1849. The act of 1849 so far amended the act of
1845, as to allow the reservation of interest upon contracts for money
loaned, at the rate of ten per cent, per annum. Ibid. 83.
4. Under act of 1857. These provisions remained in force until the
passage of the act of January 31, 1857, which allowed parties to stipu-
late for the reservation of interest at any rate, not exceeding ten per
cent, per annum, upon all contracts ; and declared a forfeiture of all
the interest reserved in case a higher rate should be contracted for ;
repealing all other laws which denounced a penalty for the reserva
tion of usurious interest. Ibid. 83.
Defense against usury, when and how interposed.
5. Under act of 1849. In an action upon a note which was given
for money loaned, while the act of 1849 remained in force, where a
higher rate of interest than ten per cent, was reserved, it seems the
defendant may insist upon a deduction of the interest reserved or paid
above ten per cent., as a defense to that extent, under the act of
1849. Ibid. 83.
By what law an usurious contract is governed.
6. As to forfeiture. The law in force at the time an usurious con-
tract is entered into, will govern in regard to the forfeiture incurred
by reason of reserving too high a rate of interest. Ibid. 83.
VARIANCE.
In pleadings and evidence. See PLEADING AND EVIDENCE.
VENDOR AND PURCHASER.
Purchaser from an agent — his rights.
Where an agent is authorized to sell land of his principal, at a fixed
price, if he sells it for a higher price, he must account to his principal
for the excess, but, in the absence of fraud, he is not answerable to
the purchaser of the land for such excess. Merryman v. David, 404.
Rights of subsequent purchaser, as against the fraud of a remote
grantor. See FRAUD.
An administrator may purchase from heirs. See EXECUTORS
AND ADMINISTRATORS.
Purchaser from executors — application of proceeds. See EXEC-
UTORS AND ADMINISTRATORS.
Purchasers at judicial sales — caveat emptor. See CAVEAT
EMPTOR.
Of the rights ov purchasers of swamp lands. See SWAMP AND
OVERFLOWED LANDS, 3, 4.
INDEX. 605
VENUE.
Change of venue.
1. Not error to refuse it, if the reason ceases. When the reasons for
a change of venue cease to exist, the necessity and the right to a
change also cease. Myers et al. v. Walker, 353.
2. So, where an application was made for a change of venue in a
cause, upon the ground that the judge then presiding was prejudiced
against the party so that he could not obtain a fair trial, and the appli-
cation was denied, the cause was tried in the same court at a subse-
quent term, before another judge to whom no objection was made. It
was held, there was no force in the objection that the application had
been denied. Ibid. 353.
WAIVER.
Op rights generally.
Where a person leased premises to be used for a special purpose, and
by reason of occurrences subsequent to the leasing, a right to sue the
lessor for damages occasioned thereby, for loss of business or other-
wise, has arisen, such right of action would be waived by a new agree-
ment between the lessor and lessee, in regard to such leasing. White
v. Walker, 422.
Waiver of homestead right by neglect. See HOMESTEAD EX-
EMPTION.
In pleading. See PLEADING.
By a surety, of his release. See SURETY.
WAREHOUSEMAN.
Warehouseman's receipt. See CONTRACTS.
Diligence required of warehouseman. See BAILMENT.
When he may charge storage.
Where a warehouseman receives a lot of corn in store from other
parties, to be " subject to their order, and free of all charges on board
their boats, or any boats they may send for the same," he may charge
storage if the corn is not taken away within a reasonable time, upon
notice to the owners to remove it. Myers et al. v. Walker, 353.
WARRANTY.
Implied warranty of title.
On sales of personalty. Upon the sale of personal property there is
an implied warranty of title, and if, in such case, the rightful owner
shall take the property out of the possession of such purchaser, he
may recover its value upon that warranty. Linton v. Porter, 107.
WITHDRAWING A JUROR.
Its effect.
1. The practical effect of withdrawing a juror, in our practice, ie
not that it shall operate as a non-suit, but merely to carry the cause
over to another term. Schofield v. Settley et al. 515.
€)QQ INDEX.
WITHDRAWING A JUROR — Continued.
DlSCRETIONAKY WITH THE COURT.
2. Granting leave to withdraw a juror, rests in the discretion of the
court, and such terms may be imposed as may be deemed just. Unless
the discretion is greatly abused, its exercise cannot, in ordinary cases,
be assigned as error. Schofield v. Settley et al. 515.
AS TO THE COSTS.
3. In this case the terms imposed upon the party to whom the leave
was given, were the payment of the costs of the term ; and while this
court would have been better satisfied if all the costs had been charged
to the party, they would not reverse the judgment because that was
not done. Ibid. 515.
WITNESS.
Competency.
1. Interest. A defendant in chancery called a co-defendant as a wit-
ness in his behalf, but the witness' liability for costs was deemed such
a disqualifying interest as to render him incompetent, except so far as
his evidence had reference to the question of usury. Kennedy et al.,
ExWs, etc., v. Evans, 258.
2. Securities for costs, and upon appeal, replevin, injunction, and all
such bonds, although more remotely liable for costs or damages, are
incompetent as witnesses. Ibid. 258.
3. Where a judgment at law has been rendered against a principal
and his surety, and the surety seeks relief in equity against the judg-
ment, on the ground of an extension of the time of payment of the
debt having been given to the principal debtor, before the judgment,
the principal defendant in the judgment is a competent witness on
behalf of his surety in such suit in equity. Ibid. 258.
4. Where the interest of a witness is equally balanced, he is compe-
tent to testify for every purpose. Ibid. 258.
5. Where a surviving partner institutes a suit in regard to the part-
nership concerns, the administrator of the deceased partner is not a
competent witness on behalf of the plaintiff, because if the party so
calling him should be defeated he would have a right to pay the costs
out of the partnership effects, and thus diminish the assets which
would come to the hands of the witness as administrator. To that extent
he would have an interest in the result of the suit. Myers et al. v.
Walker, 353.
6. Trespass against a sheriff and others, for taking and carrying
away goods: defense, that the sheriff and his co-defendants seized the
goods under an attachment against a third party, who owned the goods,
and who had sold them in fraud of the rights of the attaching creditor,
and that the plaintiffs had purchased them from the fraudulent vendee,
with notice of the fraud. The purchaser from the attachment debtor
had obtained a judgment against his vendor, upon his implied war-
ranty of the title to the goods, and this was held to render the attach-
ment debtor incompetent, as a witness on behalf of the defendants in
the action of trespass, to prove that he sold the goods fraudulently,
as his interest would be in favor of the party calling him. Babcock et
al. v. Smith et al. 57.
DTDEX. 607
WITNESS. Competency. Continued.
7. To show loss of a deed. Where a deed, a copy of which is sought
to be given in evidence, was made to an antecedent grantee, the pi d-
liminary proof of the loss of the original deed may be made by such
grantee, although he be not a party to the suit, or his agent or attor
ney. Pardee v. Lindley, 174.
HOW RENDERED COMPETENT.
8. Indemnity — release. A defendant in chancery desiring to call his
co-defendant as a witness in his behalf, sought to remove his interest in
the suit, which arose by reason of his liability for costs, by giving him
a bond of indemnity against loss. But this did not avail. Such indem-
nity was not regarded a release. Kennedy et al., Etfrs, etc., v. Evans, 258.
9. Release. Where a surviving partner institutes a suit in regard
to the partnership concerns, the administrator of the deceased partner
is not a competent witness on behalf of the plaintiff, although he may
release all his interest in the suit, because if the party so calling him
should be defeated he would have a right to pay the costs out of the
partnership effects, and thus diminish the assets which would come to
the hands of the witness as administrator. To that extent he would
have an inl-eresx in the result of the suit, and therefore incompetent,
potwithstanding his release. Myers et al. v. Walker, 353.
WRiTS — PROCESS.
Their requisites, service, etc. See PROCESS.
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